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Separation of Powers

One of the big complaints recently about Obama has been that he is acting like a king or dictator, doing end-runs around Congress such as allowing illegal aliens to avoid being deported. After all, we have three branches of government to provide checks and balances.

So it surprised me when Ted Cruz said Monday that he would encourage Congress to do an end run around the Supreme Court (a court, I might add, that is already pretty darn conservative).

Speaking about the possibility that the Supreme Court might decide in favor of marriage equality, Cruz promised the following (according to the Dallas Morning News):

He reiterated his vow to press for a constitutional amendment that would clarify the power of state legislatures to define marriage as the union of one man and one woman. If the high court does legalize gay marriage nationwide, he added, he would prod Congress to strip federal courts of jurisdiction over the issue, a rarely invoked legislative tool.

First of all, it is always hilarious when presidential candidates promise to work on constitutional amendments, as it is one of the few things for which presidents have no authority at all. They can’t even veto them.

But his promise to prod Congress to strip federal courts of jurisdiction over gay marriage is really scary. Court stripping is a theoretical idea that Congress can pass a federal law that effectively tells the courts that they are not allowed to review lawsuits pertaining to certain subjects (in this case, gay marriage). In other words, it gives Congress absolute power over the courts.

Conservatives complain about “legislating from the bench”. Well, this is the same thing in reverse, “adjudicating from the legislature”. It is Congress dictating constitutional law to the courts, which completely destroys our independent judiciary.

Court stripping is not a new idea. Back in the 1980s, another crazy conservative Senator, Jesse Helms (R-NC) repeatedly tried to prevent federal courts from hearing cases related to school prayer. More recently, Sam Brownback (now the governor who is destroying Kansas) and Todd Akin tried to do the same thing about the Pledge of Allegiance. But both attempts failed.

There’s little chance Cruz could implement court stripping over gay marriage. After all, a strong majority of Americans support marriage equality. But it just demonstrates that when conservatives scream about separation of powers, they are only throwing a temper tantrum because they didn’t get their way.



  1. David Freeman wrote:

    I hate to point out that the racist, homophobic xenophobe Jesse Helms is an embarrassment to North Carolina not South Carolina. To my knowledge, his one positive accomplishment was going to hell which definitely made the world a better place.

    [Sheesh, I even lived in North Carolina when Jesse Helms was Senator. Typo. Fixed. Sorry about that. –iron]

    Thursday, April 9, 2015 at 5:39 am | Permalink
  2. Greg L wrote:

    “So it surprised me…” No it didn’t. C’mon, Iron… I get that you’re being facetious here, but you cannot honestly tell us that you were even a little surprised by a Republican (and Ted Cruz in particular) pandering to his base, being hypocritical, ignoring the Constitution, and saying something profoundly stupid. What *would* surprise me is if Ted Cruz went a whole week without doing this sort of thing.

    Thursday, April 9, 2015 at 7:55 am | Permalink
  3. Hassan wrote:

    So let me do some consistency test.

    1. I am against Ted Cruz point of view as he is violating separation of powers. Congress has right to pass law, President has right to veto it, Court has right to review it on constitutional ground.

    2. I am against Obama, because President does not have right to legislate and create make-shift laws. He does not have right to disregard passed law by refusing to follow it.

    So do you agree or you are going to go in lengths with some weird logic defending the president as he is democrat?

    Thursday, April 9, 2015 at 8:35 am | Permalink
  4. westomoon wrote:

    I came here to point out that, to “movement conservatives,” the only legitimate branch of government is the one they control. When they control the presidency, it’s Congress and/or the courts that are illegitimate; currently, they lack control only over the Presidency, so that is the “rogue” branch.

    Ted Cruz has simply added an extra layer of sorting — conservatives currently dominate the Supremes, but they’re not quite extreme enough for Ted, which apparently de-legitimizes them as conservatives, and thus as a branch of government.

    But Hassan, hold up a minute — and less Limbaugh for you, my boy! Even though the Noise Machine has decided that an Executive Order is a gross violation of the Constitution when a Democrat is President, EOs are NOT Presidential legislating nor makeshift laws — they are how every President refines and clarifies the laws that Congress passes so the Executive Branch can execute them. Immigration, for example: ICE has only a tiny fraction of the resources that would be needed to track down and prosecute every instance of illegal immigration, so every President sets priorities for enforcement — and he uses an EO to do so.

    Under Saint Ronald Reagan, huge sections of the Federal budget were spent on classified programs, all of which were created by Presidential National Security Decision Directives, or NSDD — just like an EO, only top secret, and having only a vague connection to the National Security Act as their legislative basis. (I worked under several Reagan NSDDs for years; some were actually kept secret from Congress.)

    That was a whole lot closer to rogue Presidential legislation than anything Obama has done — and sometimes the NSDDs were designed to directly contravene legislation — like the Iran-Contra arms trading, which formally violated the law called the Boland Amendment. Ditto the torture and kidnapping programs that Bush instituted.

    As to ignoring the law, I’d guess you were not paying attention when George W Bush was in office — when the Congress quit being his rubber stamp, he made a habit of what he called “signing statements.” Since he knew any veto of his would be overturned by the Congress, he signed bills he disagreed with, but made a “signing statement” part of his signature. In hundreds of cases, he signed a law into existence with a statement saying he planned to ignore it or disobey it. Now, that was genuinely what you describe. I’d like to know what laws you think Obama is ignoring.

    Thursday, April 9, 2015 at 9:30 am | Permalink
  5. Iron Knee wrote:

    Greg L, actually it did surprise me. Setting a precedent for Court Stripping would surely backfire on the Republicans the next time they are out of power. And wanting to strip power from a Supreme Court where a majority of the justices were appointed by Republicans (Reagan and both Bushes) just seems crazy even by Cruz’s standards.

    Hassan, you miss the whole point. I was pointing out the hypocrisy of Cruz and other conservatives claiming to scrupulously follow the constitution, especially the part about separation of powers.

    To (further) answer your point, the constitution does vest in the president all executive power. As Westomoon is pointing out, Obama is merely exercising that power. Where were the conservative protests over Bush’s signing statements? More hypocrisy!

    As I’ve said before, all levels of government have discretion in enforcing laws. A state trooper may ignore if you are going 5 mph over the speed limit. A city cop may ignore if you jaywalk. Even worse, we have LOTS of old laws on our books that are no longer enforced. And that’s not even getting into the issue of the international war crimes (to which we are signatory) committed by the Bush administration.

    Thursday, April 9, 2015 at 10:27 am | Permalink
  6. Xuuths wrote:

    Every president, including George Washington, used Executive Orders.

    Thursday, April 9, 2015 at 11:04 am | Permalink
  7. Xuuths wrote:

    Except for William Henry Harrison, who died 23 days into office.

    Executive Orders by President

    Thursday, April 9, 2015 at 11:08 am | Permalink
  8. Hassan wrote:

    WESTOMOON,IRON KNEE, the conservatives (partisan ones) protests are same place where liberal (partisan ones) protests are.

    WESTOMOON, I was against Bush for his violations of constitutions and liberals were as well. Now I am against Obama’s violations of constitution but liberals are nowhere to be found.

    It is easy to talk about hypocrisy of conservatives while forgetting hypocrisy of liberals.

    I can come up with long list of violations of Obama (later in day). For starter assassination of Americans without trials (but Bush was bad for detention right??), and or immigration although I do not agree that person of authority can declare that he will discriminate on a criteria (I discussed few weeks ago), but Obama’s actions go beyond than ignoring laws. He has created laws. So if you argue that he has right not to deport illegal immigrants, based on some priorities, he has no right to grant them work authorizations (EAD) and SSN. He is granting them things without a law being passed.

    Thursday, April 9, 2015 at 11:48 am | Permalink
  9. ThatGuy wrote:

    Hassan, he’s doing all that by Executive Orders, which are a legal mechanism the President can use. So he does have that ability. Congress is able to challenge this by passing laws, but they have no interest nor ability to do so. Then, even if they do, Obama could conceivably use one of the signing statements mentioned by Westomoon. At this point (if not before) the federal court system would be engaged to figure out who is in the right constitutionally. Cruz’s proposition to strip the Judiciary of its ability to adjudicate disputes between(or the tyranny of a united Executive/Legislative bloc) the other two branches is obscene for someone claiming one or both of the other branches of government is/are overstepping its/their constitutional bounds.

    I don’t agree with everything he’s done while in office, but Obama has been forced to issues EOs because Congress can’t get anything done. Cruz and other conservatives are complaining about a problem that they helped to create. Issue laws that these EOs attempt to fix and they’ll have a case. Until then, they look idiotic crying foul.

    As to the Executive’s enforcement of laws, again this is pretty much the situation we have always been in as a country. Executive branches from the President on down to local police forces really do get a lot of leeway in how to enforce laws. If you think Obama’s actions go beyond previous Presidents, I’m sorry but you simply haven’t been paying attention. Even Thomas Jefferson (okay, fine, you’re excused for not having been alive at the time) made the Louisiana Purchase while worrying intensely (along with others) that he had not the Constitutional authority to do so. It’s been a give and take since the beginning of the Republic.

    In the end, if you disagree with how one official or the other is handling things, you vote against them. But if someone is voting for Cruz as a method to roll back events of the Obama Administration on the basis that it has gone against the Constitution, this proposal to strip the courts is a pretty clear indication of how much respect for the Constitution Cruz actually possesses.

    Thursday, April 9, 2015 at 12:52 pm | Permalink
  10. redjon wrote:

    Hypocrisy of conservatives, hypocrisy of liberals; whatever.

    We are missing the point here… Which is not about Barack Obama or George Bush doing or not doing what they did after having been elected president (TWICE, in both cases, in spite of each of their very clear records and promises, etc.). Bush is no longer in office and Obama is halfway through his second term. Those elections are over.

    The point is that, Ted Cruz is telling us what HE intends to do if elected, and we should be listening very closely to everything he says because Ted Cruz is, if nothing else, a True Believer.

    George Bush did not run against the relative prosperity of the Clinton years, and Barack Obama did not run against George Bush; although he did run against continuation of Bush’s disastrous (can anybody seriously say they were not disastrous?) foreign and domestic policies. Ted Cruz likewise, is not running against Barack Obama.

    Now, does Ted Cruz intend to reverse what some of us would say are the successes of the Obama administration? Perhaps so, and that’s something we need to talk about come primary election time.

    Does Ted Cruz intend to repeal Obamacare in its entirety? Well, he has certainly called for its repeal, so the assumption is that, yes, unless he changes his mind, he would work with Congress to repeal the AFA.

    Now Ted Cruz states publicly that he would prod Congress to strip federal courts of jurisdiction over marriage equality. Does this include the Supreme Court of the United States, which may already have decided in favor of The People vs. Government by the time Cruz, if elected, would even take office?

    Would such legislation be retroactive? Would such legislation even pass? Have we come so far that, there are no Republican candidates, none at all, who speak out in clear opposition to what Cruz has suggested?

    Does the fact that they have not done so speak volumes about the modern Republican party?

    Thursday, April 9, 2015 at 1:38 pm | Permalink
  11. ralph wrote:

    When judges act against the wishes of the extreme right wing, they are branded “activist judges” and may seek to limit their constitutional authority. Yet they have been happy with this conservative court on rulings like Citizens United, for example, which (IMHO) perversely invoked the First Amendment to allow unlimited, anonymous campaign donations that effectively puts our election process up for sale. Since politics has become more about getting re-elected than getting anything constructive done, I guess that suits them just fine.

    Conservatives like to argue that gov’t needs to get out of our lives and businesses, and constantly proclaims our “freedoms”, except when it comes to issues that bump up against THEIR personal lives or religion (gay marriage, pro choice, medical/recreational marijuana), in which case they feel justified doing whatever it takes.

    I think that’s called hypocrisy. Or politics. Pick one, or both.

    Just my view from the peanut gallery.

    Thursday, April 9, 2015 at 2:31 pm | Permalink
  12. Hassan wrote:

    Thank you all. I was wrong. President does has executive powers and can rightfully kill American citizens without trial and anything less than that.

    Also I understand that why he had to take action on immigration, because congress was not passing laws to his liking that he can approve, hence congress is inept. A good congress must pass laws that President can sign, otherwise he can go ahead and do those things anyways, citing congress ineptness to be on same ideological point of view as his.

    Friday, April 10, 2015 at 6:06 am | Permalink
  13. Iron Knee wrote:

    Actually, the killing of American citizens without trial is constitutional under the president’s powers as commander in chief during war. The fact that this is happening as part of the “War on Terror” is the fault of Congress (with plenty of help from Cheney and Bush).

    Just because it is constitutional does not make it right. I believe it is terribly wrong, and I have spoken out against it in this blog.

    However, I don’t think for a second that it is nearly as horrible as the lies, torture, and other atrocities that were committed under Bush/Cheney.

    I think you are also overestimating the power of executive orders. For example, Obama tried very hard to close down the prison at Guantanamo (which I support), but Congress specifically prohibited him from doing that, and it didn’t happen. Congress could do the same thing against Obama’s immigration actions. But they won’t, because they aren’t actually against those actions specifically, they are just trying to score political points with their base without actually doing anything.

    Friday, April 10, 2015 at 10:17 am | Permalink
  14. Dan wrote:

    When Saint Ronnie ignored a law and then broke it (think Iran-Contra) he got away with an apology and no one went to jail. As for passing a law that would by-pass the court- it would be ruled unconstitutional by that same court.
    As for amendments, how about the one being pushed by “Move To Amend” money isn’t speech and corporations are not people. I’ll buy the corporate personhood thing when Texas executes one. Welcome to the Plutocracy.

    Friday, May 15, 2015 at 9:37 am | Permalink