Thanksgiving Edition

For my next post, I wanted to incorporate a little bit of the Thanksgiving cheer. In the holiday spirit, I would like to give thanks to the Separation of Powers. I would also like to give thanks to the desperately needed five day break and the football games I can indulge in after the food induced coma. Last but not least I would like to the delicious turkey that I will be devouring.

Speaking of turkey, I will be discussing the Separation of Powers in Turkey and how they compare to the United States. First off, Turkey has been having some controversy with Prime Minister Recep Tayyip Erdoğan and the courts. There has been a push for a new constitution that would give the prime minister more powers. The top courts are fearful that this would cause a breakdown in the separation of powers and give him too much power.

In fact some of the top judges that that the new charter would ignore separation of powers, human rights and pluralism. Fundamentally, the courts are fearful that the prime minister is trying to gain too much power through the new constitution.

When comparing this to the United States, something like this would not happen. The United States has not seriously attempted to ratify a whole new constitution. Even if it did, the court would be skeptical and prevent any branch from gaining too much power. There is essentially no way that the prime minister or president in our case would be able to gain too much power just because of our belief in the separation of powers.

One case in particular that comes to mind would be Clinton v. City of New York (1998). This case is just one of the many where the Supreme Court limited the power of the President. In this case, the court said that it was unconstitutional for the president to only partially veto a bill.

We can also see the court limit the power of the president in emergency situations like in Youngstown Sheet & Tube Co. v. Sawyer (1952). Here is another prime example when the court strikes down the president and limit his powers.

It is obvious that the separation of powers is fundamentally rooted in our political system. That is why there is way that a president can gain too much power. That is what the top courts in Turkey are trying to prevent. This year when I am chowing down on some turkey that I will be thankful for the separation of powers in the United States and not the problems in Turkey.

 

Judicial Overreach

This week’s post will deal with judicial overreach. The focus will be on how judicial overreach can fundamentally lead to a break down in the separation of powers. I will also describe some cases that should not have been heard by the court.

First off, judicial overreach is where the court hears a case that they should not be hearing. The biggest blame for this happening is the judicial activism of the justices. The justices will want to set a policy to unify the whole nation, but there are some instances where the court should not intervene. However, it is sometimes difficult to determine when this is happening.

Judicial overreach can cause a problem to the separation of powers. The framers clearly laid out the powers of each branch and how they should be carried out. That means that when one branch, the judiciary, overreaches and listens to a case that they do not have the power, is causes a breakdown in the separation of powers.

The first case I want to talk about is the one that gave the court its legitimacy and the power of judicial review. That case of course is Marbury v. Madison (1803). We see here in this case that Marshall should have excused himself because of his prior involvement, but he doesn’t. Then in his opinion, he gave one of the most important opinions that gives the court its power. This opinion might not have happened without the help of judicial overreach.

More on, we see this prevalent in today’s court. There has been evidence to suggest that under Chief Justice Robert there has been judicial overreach to help protect powerful interests. We also see where the court will take yet another case revolving Obamacare. Robert’s Court has also used judicial overreach by answering a legal question that wasn’t even presented. This happened in Citizens United v FEC (2010) when the court went beyond the question and ruled that corporations are just like people, and that their spending of money is just like our speech.

The idea of judicial overreach is very dangerous to the separation of powers. It would be the same for an overreach by another branch of government. The constitution was set up to establish the powers of each branch, and going beyond that could be detrimental. We can see that the judicial branch can possess a lot of power, and they don’t need the help of judicial overreach.

No Separation of Powers?

In this week’s edition of my blog, I want to create a clearly hypothetical situation where the separation of powers did not exist. We all know that our system was set up to prevent one branch of government from getting too much power. However, it is not clearly stated. What if the founding fathers did not believe in the separation of powers and created a system in which it did not exist? I will also examine a few cases and how the outcomes might have been different if the separation of powers did not exist.

The separation of powers, today, is viewed as a necessary component from preventing one branch of government from gaining too much power. It is thought that a tyranny would occur if one branch gained too much power. We established the separation of powers from problems we saw in the monarchy of England. They said that the purpose of the separation of powers was to prevent one party or ideology from controlling the government.

Just trying to imagine the United States without the separation of powers is almost unfathomable. However I will try to give it a shot. First off, America might take on the same approach as England and have a monarchy. Or they could even become a more communist state without the separation of powers. Perhaps, America could even be a dictatorship. We see countries today that don’t involve the separation of powers and this is some of the results. These countries lack a system that creates different branches of government from gaining too much power. The idea of democracy would crumble without the separation of powers. So it could range from what America would look like, worst case scenario we become mid-1940s Nazi Germany and best case scenario we create a monarchy like England that we broke off from. Either way they both do not sound appealing.

Leaving out the separation of powers would have a ripple effect on our nation’s entire history. So the Supreme Court hearing cases and challenging constitutionality might not occur. But pretending it did, I want to first take a look at U.S v Nixon (1974). Following the Watergate scandal, Nixon tried to plead executive privilege for his crimes. He even said that “If the President does it, that means it’s not illegal’’. However, without the separation of powers, the case might have been dealt with differently. Just like the idea from England that the “King can do no wrong”, sovereign immunity might apply. Nixon could have refused the suit and finished his Presidency without being impeached.

Now let us take a look at another landmark case, Brown v. Board of Education (1954). This case broke the long tradition of the separate but equal doctrine. With no separation of powers, the court might have ruled differently (if this case would even appear). The decision helped gain tremendous impetus for the civil rights movement. This might not have happened if there was not a separation of powers to allow the judicial branch to go against the other branches of government. Segregation might still exist in the United States with no separation of powers.

Now clearly this whole post is hypothetical and a change in our country’s policy would be hard to predict, and all of these situations could be dead wrong or might not occur. However, it is undoubtedly prevalent that the separation of powers was a good aspect to our constitution and changed our country for the better.

Today’s Edition: Seperation of Powers

This week’s edition will focus on how the separation of powers is prevalent in today’s society. As explained in my recent posts, the framers intentionally set up three branches of government to create a system where each branch of government can prevent the other branches from gaining too much power. I detailed why it was created, but this post will focus on a recent case and how the separation of powers is customary today. I will focus on one case in particular, that being United States v. Alvarez (2012). This case will highlight the separation of powers in in the present day society.

This case started in 2005 when Congress passed the Stolen Valor Act. Basically, this act prohibited anyone from impersonation someone of the armed forces. There was increased penalties for involving a distinguished service cross. (i.e. Air Force Cross, Navy Cross, silver start, or a Purple Heart) They passed this law to protect the valor of soldiers who actually earned these medals.

Then in 2007, Xavier Alvarez introduced himself as a retired marine of 25 years where he won the Congressional Medal of Honor. Finding this statement false, Alvarez was indicted for violating the stolen valor act. Alvarez, the scum that he is, argued that the Stolen Valor Act of 2005 was unconstitutional because it infringed on his right to free speech that is protected under the 1^st Amendment.

The Supreme Court finally heard the case. In 2012, with a 6-3 decision, the court ruled in favor of Alvarez. The court said that Congress drafted the Act too broadly, and criminal punishment for speech that causes no harm is improper.

Rather quickly after the ruling, the Executive Branch took action. They created a national database of medal citations. This database was created to assist verification of military honors. Congress saw the scrutiny of the first act, so they made a narrower act. The Stolen Valor Act of 2013 made it a crime if the person received anything of value from impersonating a soldier. Differing from the first act, this act was intended to prevent any valuable gain from knowingly misrepresenting military service.

Alvarez got away with what he said under the protection of the first Amendment. But justice was still served when he got 5 years of prison for grand theft and insurance fraud. I guess you can say he got exposed for the fraud that he was.

However, on a more serious note, the separation of powers is on display with this case. We can see all three branches of government working together. Congress created the Stolen Valor Act of 2005 to stop the misrepresentation pf soldiers. However, the Judicial Power of the Supreme Court shot down this act because they viewed it as unconstitutional. The Executive Branch comes into play by creating the national database of medal citations. Finally, Congress passed a new Act in 2013 to combat the ruling in United States v. Alvarez.

My first initial thought was how the Supreme Court could allow someone like Alvarez to get off scotch free. But then it makes sense when setting a precedent that the 1^st Amendment is more important than the specific result of one case. I also noticed that this case outlines the ‘battling’ for powers by each branch. I saw that power struggle where the Supreme Court shut down Congress’ first act, but Congress went on to pass a new act to fit in with the ruling.

Blog Audit

For this week’s edition of my blog, I want to take a look back and reflect on my posts. I started the blog up by trying to set up the powers of each branch of government. I started with Article I and Congressional Powers, then moved to Article II and Executive Powers. Finally, I examined the Judicial Powers granted in Article III. My main intention was to set up my entire blog by first examining the powers of each branch.

However, I have not done a very good job at examining the importance of each of these powers. Instead, I got sort of sidetracked when the new term started and used a weekly blog to describe how the separation of powers might be on the new docket. And just like that my topic got derailed and I didn’t focus on the main intention of my blog.

My following post matched the scattered motif of separation of powers, but it focused at the state level. I was very intrigued in the matter of judicial elections, and I used a week to tie it in to the theme of separation of powers. Judicial Elections was one of my favorite posts, but it didn’t tie in to what I intended for this blog.

Looking back at some of my work, I noticed that a lot of my posts are very factual and not very opinionated. I intentionally started out this way to set up my point, but I lost track and kept that same style. Moving forward I want to base more of my posts on my opinions that can be supported factually.

My last post starts to come back together with what the intention of the blog is about. For the next few weeks, I am really going to emphasize the THEN vs. NOW aspects of the separation of powers like I initially intended to do in the first place. We see in my last posts, that I incorporate the past with why the separation of powers is included. With the exception of Judicial Elections and the Supreme Court’s new docket, my posts have been very past oriented. That trend will start to change when I take a look as some present day issues of the separation of powers.

As seen in most of my posts, my theme has been very scattered and it is hard to see what issue is clearly at hand. However, my next few posts might clear that up a little when I will try to connect the past and the present. I want to reassure that this blog is going somewhere, even if it doesn’t seem like it. These next few posts will be an indicator of my initial intention of examining the separation of powers from THEN until NOW.

Why Include a Seperation of Powers?

On this week’s edition of Blogging the Power, I want to start by introducing why the Separation of Powers were included in the first place. Next week I will take the approach on how they are being used in today’s society and its overall effect on the branches. But first, I will examine why the founding fathers did what they did. To start off there is no explicit declaration of the Separation of Powers in the Constitution. However, James Madison wanted to propose an amendment, but members of Congress thought the implicit structure of government was set up to do this in the first place. So he was shot down because it was thought of a redundancy.

Separation of Powers served a couple of goals for our newly created government. It first wanted to provide each branch with a mechanism to prevent the other branches from infringing on their power. We see this encroachment happen from all of the branches. We can see the Executive Branch infringed on the Legislative Branch in Youngstown Sheet & Tube Co. v. Sawyer (1952). We can see Congress infringe on the executive branch in Bowsher v. Synar (1986). As you can tell all of the branches, have tried to broaden their power, even if it meant taking away another branch of government’s power. That is why our founding fathers did what they did.

James Madison in Federalist Paper No. 51 even states, “Ambition must be made to counteract ambition.” He thought that each branch needed to have its powers clearly stated with boundaries from preventing one branch to get too powerful. By designating these powers to each branch in the constitution, they can prevent the other branches from intruding on their powers. The Federalist papers even viewed the Separation of Powers could help governmental efficiency by making each branch specialized.

More importantly though, the main reason for the Separation of Powers is to prevent one branch or person from becoming too powerful. The framers were worried that one branch of government could gain too much power and create a tyranny. They idea of tyranny worried the framers that the rights and liberties of the American people would be infringed on. However, it probably would make a more effective government if there wasn’t any backlash to the majority’s ideas.

As you can see, the framers had a dilemma when creating the new Constitution. They had to fix the weak Articles of Confederation, but also maintain some of these key principles like the Separation of Powers. The framers helped prevent a tyranny, but also made a slower government in the process. As it seems, I think a little slower government is a good trade-off to having a lot more freedom.

Judical Elections

This week I wanted to discuss the separation of powers, or lack of, in the state level. We all know that federal judges are appointed and approved for life which can provide judicial independence. However, that is not the same at the court level. The main purpose for judicial independence is to protect minorities and provide that separation of powers. But, when judges are elected we can see that this is no longer the case.

Hot Coffee documents a major problem with judicial elections. It depicts judicial elections for the Supreme Court of Mississippi. It entails that the U.S Chambers of Commerce funded campaigns against the Honorable Oliver E. Diaz Jr. because of his resistance to tort reform. Ultimately when Judge Oliver Diaz when the election, there were lawsuits brought up against him to keep him off the bench. Even after he was acquitted, the negative connotation kept him from being reelected.

The documentary definitely strikes the motion that money and campaign funding was necessary to winning a judicial election. That being said, it goes against the framers intentions of separation of powers. Even though, they only set it up for federal judges and not at the state level, judicial elections can make a member of the bench follow his or her own political agenda to keep getting reelected. The constitution set up the courts to rule on matters of law and not on political matters. This is why we can see issues like Brown v. Board of Education (1954) having a unanimous 9-0 decision. Problems at the state level occur when the line between political policy and the matter of the law become blurred.

That being said, judicial elections will ultimately cause a break down in the separation of powers. The process where legislators create the law and the court eventually rules on it can change when they are working together instead of being separate entities. In the case of the Mississippi Supreme Court, we saw a rich and powerful U.S Chambers of Commerce fund judges that had similar views. They could as easily fund legislators as well. This would cause the same ideology to pass and rule on laws that might not be deemed appropriate if there was an independent state judicial branch. We can easily see a Marxist approach where the law is controlled by the economically powerful to control the less powerful.

Not only do we see where judicial independence can protect the minorities, but it also separates the branches. This separation is exactly why our founding fathers gave lifetime appointments to federal judges. There is even suspect to believe that they should have be intended for any lower courts as well. Not all of the states have judicial elections, but the ones who do including Mississippi could have a serious problem with the separation of powers.

SCOTUS New Term: Is Seperation of Powers on the Docket?

Since the Supreme Court of the United States is ready to start its next term tomorrow, I wanted to take a closer look at its docket. There are definitely some interesting cases that will be heard like DIRTECTV v. Imburgia involving the Federal Arbitration Act or Hurst v. Florida that questions if Florida’s death sentencing scheme violates the Sixth Amendment or the Eighth Amendment. There are numerous cases that will be argued, but one case in particular that deals with this blog is Bank Markazi v. Peterson. The question for the court is that if a law passed in 2012 (22 U.S.C. § 8772) violates the U.S Constitution by dictating a case which in turn would violate the separation of powers. However, this case is not (yet) set for argument.

Bank Markazi v. Peterson peeked an interest for a couple of reasons. Firstly, since the blog is pertaining to the separation of powers, it would be intriguing to see a new ruling regarding it. Next, it would be interesting to see how the court would handle this case because of the delicate relations already between the United States and Iran. And finally, it is always fascinating when the courts rule on cases that involve foreign actors. It is interesting to see that the courts would hear a case that one of the parties is not in the United States.

Since this case involves a foreign actor, the outcome could alter foreign relations. Since the Iran Nuclear deal, there has been a delicate relationship between the United States and Iran. A ruling towards either side could create tension between the two. The courts are design to stay out of politics, but the decision in this case could be very political. Either way, the Supreme Court might decide to hear the case. If they would turn it down, $2.65 billion would have turned over to the families of victims of a militant group attack.

Finally and most importantly pertaining to this blog is the question from the respondents Deborah Peterson, et al. Their question in their brief is “Whether Section 502 of the Iran Threat Reduction and Syria Human Rights Act, 22 U.S.C. § 8772, violates the constitutional separation of powers because it amends existing law applicable to a particular pending case.” This I believe is why the Supreme Court will decide to grant the writ of certiorari to Bank Markazi. It is not that the court thinks these victims don’t deserve the money, but it wants to address this question of separation of powers.

With that being said, the SCOTUS will listen and give their ruling on numerous cases this term. They might eventually take this case because their decision will help set the precedent for the separation of power. The separation of powers was sought after by the framing founders to prevent one group from getting to much power. The separation of powers will be examined thoroughly with this case to help set a precedent. So just remember with all the cases the Supreme Court will hear in the next couple of months, the separation of powers might be on review in Bank Markazi v. Peterson.

Judicial Power

The last branch of government I need to discuss to setup the separation of powers is the Judicial Branch. The Judicial Branch was the last branch set up in the constitution.  The Legislative Branch was set up in Article I of the Constitution while the Executive Branch was set up in Article II. Article III, the shortest of the articles, sets up the Judicial Branch. Before we can discuss the separation of powers, I must discuss the power of the judicial branch.

Article III of the Constitution was short which, consequently, made it weak in nature. However, through time and some cases, the court has legitimized some of its power. A power that is necessary in protecting the citizens and the constitution.  The biggest responsibility of the court is to protect minorities and the rights of citizens is the idea of judicial independence. Judicial independence allows the courts to be somewhat separated of politics and public opinion. It allows them to uphold the constitution without any outside pressure forcing their decisions.

That being said, judicial independence does not give the Judicial Branch that much power. I would argue that there are two influential people that really help legitimize the courts power. The first influential person was John Marshall. John Marshall became the fourth Chief Justice of the Supreme Court in 1801. He helped make the Judicial Branch a coequal branch of government. This happened with his decision in the landmark case Marbury v. Madison (1803). In his decision, he established judicial review, allowing them to view law’s constitutionality. This allowed the Judicial Branch to provide a check against the other branches.

Even though, the court established judicial review, they do not have the power to enforce their rulings. This is prevalent in the case of Cherokee Nation v. Georgia (1831). The court ruled in favor of the Cherokee Nation, but Jackson did not adhere to their ruling. Since the court had no enforcing power, Jackson went along and ordered the expulsion of the Native Americans known as the trail of tears.

The second influential person was President Eisenhower.  Since the courts do not have enforcing power, they couldn’t really enforce their controversial decision in Brown v. Board of Education (1954). However, Eisenhower agreed with the ruling and even sent troops to support the court’s decision. With the backing of the executive branch, the supreme courts decision could finally be enforced. This is what the court needed to help give their rulings so backing.

In the beginning, the court was weak in nature due to the lack of power granted in the constitution. The court itself has established some of its power, but it didn’t mean anything without the power to enforce their rulings, but when Eisenhower backed the courts, it gave the court the help it needed to have an impact of their decisions.

Executive Powers

To continue on my topic of separation of powers, next I must set up the executive branch. It is important to set up the branches of government before explaining and debating the separation of powers. In this blog post, I want to explain how the executive branch got their powers and some cases of the Supreme Court that challenged their powers.

The powers of the executive branch are derived from Article II of the constitution. Article II begins by saying that the executive power will be held by the President of the United States of America. I believe they did this for a couple of reasons. First, I believe the framers wanted a figure head to lead the nation. They wanted a single person to hold the power of the executive branch. They also set up this executive branch to separate themselves from England’s monarchy. They saw that an elected president would differ from the queen or king of England in that the next head of state would not be a result of just having the same family heritage. The rest of Article II goes on to defining the powers and duties of the President.

The first case I examined challenging presidential powers was The Prize Cases (1862). Basically, Abraham Lincoln ordered a military blockade of ships in the Southern Ports. The argument was that the president didn’t have the power to authorize these blockades. However the court ended up ruling in favor of Lincoln saying that he indeed had the power to authorize the military blockade without a formal decree of war. This ruling was one of the first cases challenging the executive powers, but the Supreme Court still ruled in favor of the president. It also points out that the executive powers set up in Article II could be scrutinized and were sometimes unclear.

A major challenge to the executive powers came not from a case, but from a Constitutional Amendment. The 22^nd Amendment, which was ratified in 1951, set a term-limit for the president. This was a direct result of Franklin Roosevelt’s lengthy tenure as president. This was a major constraint on the president, because there was no set term limit set in place before this amendment. However, I don’t believe it is that restricting because Roosevelt was the only president to serve more than two terms. When George Washington decided not to run for a third term, he set a precedent for the presidents which was largely followed until Roosevelt. Even though it wasn’t specifically stated, the president never held office for more than two terms. Even though, I believe the Amendment was passed solely on Roosevelt’s lengthy tenure, it is a necessary amendment to prevent more than two terms. It is important to set the limit because we wanted to distinguish ourselves from British rule. Their head of state holds office until they die. We wanted to stand out from the monarchy and show that the president cannot hold power for as long as they want.

Now there are many Supreme Court cases that challenge executive power, such as the more recent case of Clinton v. City of New York (1998) which declared the line item veto power unconstitutional. Also, in the case of the United States v. Nixon (1974) where the court recognized executive privilege, but it stated that it didn’t apply in a criminal investigation. Therefore as we can see, there are many cases that challenge and shape the executive powers that were set up by the framers to distinguish ourselves from England and the monarchy.