#Separation of Powers

[alwaysbewoke]

the fix is in!!

[deadpresidents]

This may be a goofy question for someone who’s blog is dedicated to the Presidency, but do you think that the U.S. Presidency is ultimately a net good for the country and the world? Should the US try a system without such a powerful executive branch?

That's not a goofy question at all, especially in 2024!

I think the American system as originally envisioned by the Founders -- with three truly equal and balanced branches of the federal government with a definitive separation of powers -- was brilliant and effective. But that's not the country we live in anymore. The three branches not only don't respect the powers of each other, but they often don't respect the powers of their own branch, which means there is no balance of power. If there's no true balance of power amongst the separate branches, the entire design flat-out doesn't work.

The problem is that this is the system and has been since 1789, so you can't really put the toothpaste back in the tube. But there are certainly many aspects of the Westminster system or even a dual executive republic like the French government that would be a more efficient and genuinely democratic way of governing a modern democracy. There are drawbacks, too, but I don't think our system is ideal when it's challenged by the petty and destructive politics of the United States in the 21st Century, which is dominated by this awful determination to actively obstruct government. There are scores of American politicians who run for office on the idea of NOT doing things and literally keeping the government progress derailed.

[aquietwhyme]

This from the guy who cites pre-US witch hunters to make case law oppressing women, who cherry picks what is legitimate and what is not based on his political needs to defend rapists and molesters, and who is chest deep in the middle of what amounts to a decades-long corruption and bribery scandal.

This is the culmination of a century of "separate but co-equal" jibberjabber bullshit theory being spoon-fed to impressionable young minds. Congress is the supreme branch of government. Do I like that? Not really, Congress is mostly incompetent and corrupt. But they absolutely have the authority to regulate the supreme Court just as they have the authority to regulate the president; not without limit, but the authority is there.

Alito's take here will lead, and much sooner rather than later, to a Jacksonian response from both Congress and the executive branch. Is that what he wants? I don't know, but it's what he's going to get if his fellow fashies on the bench follow suit. The hubris of these folks will lead to their downfall, and we can only hope they don't drag the rest of us with them. Though given the Court's history of mostly propping up the worst aspects of the US system, maybe I should be celebrating Alito and Co's myopia.

[contemplatingoutlander]

As always, Jennifer Rubin provides some excellent suggestions about how Biden and the Democrats can curb the far-right House GQP.

The rules package that House Republicans passed Monday night provides an indication of just how much damage House Speaker Kevin McCarthy (R-Calif.) has wrought in capitulating to the most extreme members of his caucus. The good news is that the Biden administration can thwart McCarthy’s schemes.

For starters, the House GOP is spoiling for a fight on the debt limit. The rules package eliminates a long-existing parliamentary rule that automatically raised the debt ceiling whenever the House passed a budget. This will empower the House to hold the economy hostage to extract dangerous cuts to national security and crippling reductions in entitlements.

But the White House can defuse the extortionists’ bomb before it is detonated. It should plainly state that the president has the power to ensure Congress does not sabotage the full faith and credit of the United States.

Section 8 of Article I of the Constitution states that Congress has the power “to lay and collect taxes, duties, imposts and excises, to pay the debts.” It further states that Congress has the power to borrow “on the credit” of the United States. Plainly, the Founding Fathers did not envision lawmakers deliberately refusing payment of debts and destroying the credit of the United States.

But the 14th Amendment makes clear that this power does not include the power to trigger a default. As constitutional scholar Laurence H. Tribe succinctly tweeted, “The debt ceiling is a misnomer: it does nothing to cap spending but just creates an illusory threat to stiff our creditors.” That’s because “[Section] 4 of 14th Amendment forbids defaulting on the nation’s debts.”

In other words, the Constitution compels the government to honor its debts. The administration shouldn’t need congressional action to do that. [...] In short, the White House should seize the initiative to disarm Congress now, before a loaded gun is put to the nation’s head.

The GOP rules package also sets up a blatant violation of separation of powers that would undermine the fair and impartial administration of justice. It would do this by establishing a subcommittee on the “weaponization of the federal government,” which would be authorized to review ongoing criminal investigations.

Former federal prosecutor Joyce Vance explains in a Substack post, this would “go far beyond the legitimate scope of oversight. Reviewing criminal cases while they’re in progress, which DOJ won’t permit...would overstep Congress’s bounds and violate the separation of powers.”

It’s no secret what the Republicans are up to. Vance writes: “This is little more than a mechanism for House Republicans to try to interfere with any investigations into Trump, or any other Republicans, like George Santos or Matt Gaetz, who may be the subject of non-January-6-related matters.” She adds that Rep. Jim Jordan (R-Ohio), who will likely lead the subcommittee, “will be able to issue subpoenas regarding the Hunter Biden investigation, which is being handled by a Trump-holdover U.S. Attorney in Delaware to try to embarrass President Joe Biden and argue that his Justice Department is giving favorable treatment to his son, which it clearly isn’t doing.”

[See more below the cut.]

The Justice Department has a well-established practice to prevent Congress from meddling in ongoing investigations and prosecutions. As the Justice Department explained in a letter to a congressional subcommittee in 2000, “Although Congress has a clearly legitimate interest in determining how the Department enforces statutes, Congressional inquiries during the pendency of a matter pose an inherent threat to the integrity of the Department’s law enforcement and litigation functions.” The letter continued, “Such inquiries inescapably create the risk that the public and the courts will perceive undue political and Congressional influence over law enforcement and litigation decisions. Such inquiries also often seek records and other information that our responsibilities for these matters preclude us from disclosing.”

Attorney General Merrick Garland should respond similarly to any MAGA overreach. [...] In sum, the administration can proactively short-circuit the proposed House rules. In doing so, it would reassure the markets and the American people. Biden should not miss this opportunity to make clear that McCarthy’s rules are the result of MAGA Republicans’ extortion and are as worthless as his speakership.

[emphasis added]

[dontmeantobepoliticalbut]

Former Vice President Mike Pence will not appeal a federal judge’s order that he testify in the special counsel’s probe of former President Donald Trump’s attempt to overturn the 2020 election, his adviser announced Wednesday.

The decision not to fight the order could provide special counsel Jack Smith with remarkable access to one of the key people with critical insight into Trump’s thinking and efforts to cling to power.

Last week, Judge James Boasberg, the chief judge of U.S. District Court for the District of Columbia, largely dismissed efforts mounted by Pence and Trump to limit his testimony and avoid handing over documents.

Boasberg acknowledged a constitutional argument against forcing Pence to testify in front of a grand jury about matters related to his role as Senate president during the certification of the election on Jan. 6, but nevertheless concluded that immunity should not prevent Pence from testifying about conversations related to alleged “illegality” on Trump’s part.

“Vice President Mike Pence swore an oath to support and defend the Constitution, and his claim that the Biden Special Counsel’s unprecedented subpoena was unconstitutional under the Speech or Debate Clause was an important one made to preserve the Separation of Powers outlined by our Founders,” Pence adviser Devin O’Malley said in a statement Wednesday. “In the Court’s decision, that principle prevailed. The Court’s landmark and historic ruling affirmed for the first time in history that the Speech or Debate Clause extends to the Vice President of the United States. Having vindicated that principle of the Constitution, Vice President Pence will not appeal the Judge’s ruling and will comply with the subpoena as required by law.”

It’s unclear exactly when Pence will appear before the grand jury in Washington, according to a source familiar with the matter, and the case remains under seal. Trump’s attorneys could still appeal Boasberg’s ruling. Last week, his legal team filed an appeal to block the testimony of several of his senior aides.

Pence has already published a memoir and Wall Street Journal op-ed detailing several significant interactions with Trump in the days leading up to Jan. 6. NBC is told prosecutors are focused on specific efforts Trump took to try to block the certification of the election.

[doncar09]

I wish this was just satire...

[yz]

Israel resisting dictatorship. Hope it works.

[thepoliticalvulcan]

The New New New Center Left Militarism

I'm one of those cranks that doesn't lose sight of his core values whenever there is a clear and indisputable villain in the world who deserves confrontation. I hate colonialism but I refuse to subscribe to an opposite day narrative where every opponent of the US or the West must be good, actually, solely because they are fighting America or its proxies. I also refuse to lose any and all skepticism about the role of the military in society or my sense of nuance about societies that have elements that are antagonistic to the US or who have done heinous things.

There IS vice in excess in the "defense of liberty" whether its bombing aid convoys as part of a mass counter insurgency operation or engaging in murder of civilians and rape in anti-colonial struggle.

And this loss of perspective is one that I began to fear when ISIL emerged, even as I was rooting for interventions to save religious and ethnic minorities that ISIL was attempting to eradicate. I made a measure of peace with the idea of a military as having some legitimate uses and there being shades of gray in interventions after long years of being almost exclusively anti-interventionist as a consequence of the Bush years. I did feel a duty to people targeted by ISIL because this was a direct consequence of an American war, a war I fervently opposed.

I felt similarly complex feelings when Putin invaded Ukraine. If we can help these people without blowing up the world and making everything worse, we should do that. And I actually feel pretty good about that, the Ukrainians have shown themselves to be an honorable people who don't directly target civilians, even though they have no small amount of edgelords who would see the targeting of Russian civilians as fair and appropriate payback for the suffering inflicted on Ukrainians.

But! When St. Javelin became a thing, I grew concerned. Because like ISIL, once more I saw people who argue for universal healthcare and put pronouns in their bio making asinine arguments about this or that escalation or intervention that seemed to leap the bounds of a slow but steady boiling of the Russian frog and extremely likely to get us into a nuclear war. This was not exclusively the arguments put forward by left of center types nor does it make their commitments to inclusivity and health justice some sort of signal or invalid. Lots of traditional American supremacists on the right were offended at the idea of Russia doing anything without checking with us first wanted Russia taught a lesson.

Then comes 10/7 and my worst fears unfold. While a lot of the progressive left fiercely opposes Israeli retribution for a mix of reasons I agree with and many I don't, once more I see people I know who have argued for civilization at home becoming more, well, civilized, snarling about Israel taking the gloves off and making arguments about there being no real civilians in Gaza or that a high civilian death toll is unavoidable and comparable to other instances of fighting dug in militants in urban warfare. As if it were a foregone conclusion that an all out ground assault and saturation bombing was the only sane or moral response to the 10/7 atrocities. And they were atrocities. I will not mince words on this. Historical trauma and modern oppression is not an excuse. But what has happened to Gaza is also an atrocity. Hamas being assholes doesn't make it not an atrocity. If the enemy is using human shields, you are not automatically in the right to attack anyway to "teach" them that this tactic won't work so they shouldn't do it in the future. Because that completely misunderstands the finer distinctions between a state actor engaged in territorial defense and an actor who is trying to incite a regional uprising to topple what they perceive to be an invalid state and people squatting on stolen land.

So what's the point here? Honestly I'm just trying to organize my thoughts, compare notes, and see if anyone else has been in this discourse long enough to notice this same phenomena. Namely that a willingness to go along with militarization and militarized "solutions" to complex international issues seems to get supercharged by the availability of villains we don't need to feel too terribly bad about seeing harm come to. But giving ourselves permission to feel good about seeing cities turned to rubble because they were "full of bad guys" has a way of numbing us, numbing our critical thinking skills, and making it such that when such intense and ruinous violence is a choice, not a necessity, we automatically are inclined to accept that it is necessary.

[deadpresidents]

So I found out that Martin Van Buren was apparently part of the New York legislature at the same time as being Attorney General of New York. Were the rules about separation of powers different around then, as I know that unlike us Brits you Americans have very strict rules on this?

The U.S. Constitution (via the Incompatibility Clause: Article I, Section 6, Clause 2) only prohibits members of the U.S. Senate or U.S. House from serving in the Executive Branch or the Judicial Branch at the same time (and vice versa), so there's nothing on a federal level that would keep someone from serving in two other offices simultaneously.

However, each state has their own laws and restrictions, and most states don't allow people to serve in two elected positions at the same time. I don't know if any states actually still allow it at all, but there may be some where it's technically possible as long as the office-holder isn't getting paid from both positions and the two positions are not incompatible (causing a clear conflict of interest). It differs from state-to-state, though, so it depends on which state we're talking about -- and the laws have changed throughout history, so what might have been allowed in the past may not be possible today, but I'm pretty sure the vast majority of states, if not all, now prohibit dual-office holding.

In regards to the specific example you mentioned, the requirements in New York were definitely different at the time that Martin Van Buren simultaneously served in the legislature and as state Attorney General. From a quick look at the New York State Constitution that is currently in effect, it appears that a member of the state legislature would have to vacate their seat to accept another position in the state (or federal and city) government, so Van Buren wouldn't be able to do the same thing today in New York.

[jbfly46]

The federal government doesn’t interfere with state government issues, meaning if you somehow usurp the power of your state’s officials, the federal government won’t step in to save them.

[shikisei]

ok stupid question my bad

[legalattorneyblog]

The Senate President Maintains Non-Interference with Judicial Decisions in Nigeria: Dr. M.O. Ubani

The recent allegations brought forth by Senator Elisha Abbo, representing Adamawa North Senatorial District in Adamawa State, against the Senate President, His Excellency Godswill Akpabio CON, regarding his dismissal by the appellate court, have been met with astonishment and a swift response from the office of the Senate President. African Bar Association Nominates Distinguished Nigerian…

[rickladd]

Fani Flames Gym

Just finished reading Fani Willis’s response to Jim Jordan’s ill-conceived attempt to bully her into backing off of her RICO J6 investigation/prosecution. She flames him at least a half dozen times while refuting every position he asserted in his previous demand letter sent to her on August 24. While it was an eminently enjoyable read given the disgust I feel, and the disdain I have, for the…

[circleandsquarecomic]

Circle Understands the Separation of Powers

[solitairemeb-blog]

WTF is the archbishop of Canterbury doing addressing the house of lords? I thought the "separation of powers" [separating church, state and legislature from the crown] was a cornerstone of the Westminster system. ⁉️

That is the church, state [king] and legislature [parliament] got separated and they stay out of each other's business. That's part of the reason the poms have got these ceremonies between the crown and parliament. The old state and legislature deferring to each other.

What is this joker doing involving the church in politics? If the state has got to stay out of politics, surely the bloody church should too.