November 17, 2014--Co-Equal?

Flipping channels the other morning in search of anything other than the local weather forecast and reports about gridlocked traffic, I paused for a moment on MSNBC to see how their post-election post-mortem was proceeding.

They had already concluded that there was no chance of anything bipartisan happening between a cranky Republican Congress and an equally grumpy Barack Obama, who was about to issue a series of executive orders to deal in part with our immigration mess.

John Boehner was sputtering that if the president did this the GOP would fight him "tooth and nail," some of his members gleefully chiming in in the background that this could lead to Obama's impeachment; while over in the Senate, about-to-be Majority Leader Mitch McConnell said that if Obama signed those executive orders it would "be like waving a red flag in front of a bull" and could easily lead, McConnell threatened, to yet another government shutdown.

Boehner I ignored--he has his Tea Party members to contend with; but I took McConnell at his word because if there is anything he knows about it's bull.

One of the MSNBC panelists pointed out that Obama acting as promised would assure nothing gets done since, "in our system," the federal government is made up of "three co-equal parts" and unless there is some semblance of working together it will mean that more than the traffic will be gridlocked.

Really, I thought. Have the MSNBC folks read their Constitution recently?

In fact, in great detail, whatever we think of it, the Constitution goes to great length to make certain that the three branches of our government will be anything but equal or, if you prefer, co-equal. And to assure that the Congress, which at least theoretically most represents "the people," in fear of European-like monarchal tyranny or dominance by corrupt and unrepresentative courts, our Founders took care to structure things so that Congress would be preeminent.

Not the executive branch and not even the Supreme Court. In fact, creating the Supreme Court was an afterthought on the part of the Framers. That's how much they despised and feared the potential power of a corrupt judiciary. And so they severely limited its powers. As they did the presidency, again, for fear of tyranny.

Congress has the exclusive power to enact laws (forget executive orders which by their nature are constitutionally questionable--something we may see tested if Obama does his immigration thing) and once passed and approved the executive, like it or not, the president must enforce. Indeed, though bills passed by Congress must be approved by the president, if they are vetoed, the Congress still has the ultimate authority to enact them by voting to overturn that veto. And if the president refuses to follow the Constitution he can be impeached and removed from office. By Congress. As can Supreme Court and other federal judges. Again, solely by Congress. Only voters can get rid of even felonious or demagogic congressmen.

This doesn't sound co-equal to me.

What about the president's constitutional prerogatives as Commander in Chief? Doesn't that make him preeminent? Not really.

When the Constitution was written in 1787 the new republic didn't have a standing army and so there was very little for the Commander in Chief to command. In fact, the Framers were reluctant to agree to a standing federal militia or navy. That too they saw to be a threat to representative government. Again, looking toward Europe, it was the last thing they wanted.

It is only since the Second World War when, because of the advent of nuclear weapons and ballistic missiles and the speed with which they can be launched, that so much retaliatory power has accrued to the presidency. But, again with the necessary acquiescence of Congress. It is felt that the national security state that we have become requires such powers be granted to the president. But, if Congress disapproves of presidential military ventures it has the exclusive power of the purse--only Congress can authorize governmental spending.

This doesn't sound co-equal to me.

And when it comes to the Supreme Court, it too is a bit less than supreme. True, for the most part, when they rule it becomes the so-called "law of the land." But they rule about very little and even if and when they do, if Congress does not like a ruling it can pass other similar laws designed to get around SCOTUS rulings and, if that fails, amend the Constitution. Admittedly this is a rare and arduous process, but still the power resides with the Congress (and the states) to change if they wish our most sacred document.

Again, this doesn't sound co-equal to me.

Like it or not, the structure of the government we have is not as viable as it was in the sleepier 18th, 19th, and even 20th centuries. But it is what we have. Governmental gridlock was not something to be avoided, but was a desired part of the process. A relatively weak and unintrusive federal government is what our Founders intentionally framed for us and though we now know how intrusive an unfettered government can be, because of checks and balances, an ineffective government with a dominant Congress is what we have. Just what was intended.