Should we pity the poor Senate Democrats running for re-election this year? Probably not, since this is the class of Senators that came in with President Obama, rubber-stamped his stimulus boondoggle, cast the decisive votes on Obamacare, and managed to go 1,444 days without passing a budget.
Skittish Democratic incumbents, however, did gain a little bit of relief this week from apologizing for the Administration’s serial incompetence and lawlessness when House Republican Majority Leader Eric Cantor’s defeat enabled the MSM to pivot back to its favorite hobby horse – the perceived electoral troubles of a national Republican party that becomes less and less controlled by its establishment types.
If these same Democrats wanted to create a little more permanent daylight between themselves and the president, they could do no better than look for help from the same long-neglected source that has fueled the campaign troubles of establishment Republicans: the Constitution.
Consider how this type of response might work.
Several red state Senate Democrats want to distance themselves from the President’s recently announced executive actions to cut carbon emissions. Their actions to date, however, are transparently cynical. Louisiana Senator Mary Landrieu visited a local “coal-fired power plant”; Kentucky Democrat Senate candidate Alison Lundergan Grimes promised to confront Senate Majority Leader Harry Reid (what did he do?) at a fundraiser–and then apparently backed down.
Meanwhile, presidential advisor John Podesta chimed in that there is nothing the Congress can do about the president’s actions–since his veto pen is ready to protect the work of his executive order pen.
This is the hegemonic presidency we wrote about last week at work. Step 1: President Obama seizes legislative authority by ordering EPA regulations that go far beyond the normal administrative details that bureaucrats must determine in implementing laws. Step 2: He threatens to use his legitimate constitutional authority to keep Congress from undoing his law. In other words, he takes a veto power that was given to the president to protect the Constitution–from laws that go beyond legitimate federal authority or Congressional efforts to usurp executive or judicial power–and uses it (or the threat of using it), instead, to protect his own usurpation.
If, however, Senator Landrieu and State Treasurer Grimes are serious about their concerns over the president’s actions, there remain a number of constitutional lines of response they could throw (or promise to throw) their full-throated support behind. For instance:
a. Congress could refuse to fund the EPA or any particular part of it;
b. Congress could pass a law rolling back the EPA’s regulations with a veto-proof majority;
c. The House could open an investigation of whether the president’s numerous usurpations and breaches of the law constitute “high crimes and misdemeanors” and therefore are grounds for impeachment.
Such ideas, of course, seem politically fanciful, the exclusive domain of the true believers and the fringes of conservative talk radio–or economics professors turned giant killers. But if they were serious about combatting a hegemonic Presidency that threatens their constitutional prerogative, or perhaps even winning in November, they could set a good example by employing the Constitution themselves.
And there’s the rub. During the campaign season, geographically-challenged Democrats simply clothe themselves in red. If they were truly serious about defending the integrity of their office by checking the unconstitutional acts of their party’s executive, they would endanger the brand of politics that has been in place since the Progressive ascendancy in America began its assault on the separation of powers, as far back as 1885, when Woodrow Wilson published his Ph.D. dissertation, Congressional Government.
Almost thirty years before he became president, the young, academically-ambitious Wilson argued that the fundamental flaw of the American system was the separation of powers, which, in his view, made large-scale reform too difficult and undermined the accountability of political leaders, who could say what they wanted on the campaign trail without ever having to produce results.
Wilson’s concerns about accountability seem perfectly illustrated by the Landrieu and Grimes examples–where symbolism triumphs over substance. In fact, however, the problem today is not the separation of powers, but the atrophying of the tools (the system of checks and balances) that the Constitution has established to maintain it.
After affirming the fundamental connection between the separation of powers and the protection of liberty in Federalist 47, James Madison reviews, in Federalist essays 48-50, a series of possible means for maintaining that separation. He concludes that neither “parchment barriers” (a constitutional description of the powers of each branch), nor conventions called by the aggrieved branches of government or held periodically, would keep a rogue branch or branches of government from usurping the powers of other constitutionally-delegated authorities.
The problem with “parchment barriers” is that they are no match for the “encroaching nature” of power in human affairs. The convention method of relief offers no better an expedient since:
a. the convention will too often meet after the damage has been (irreparably) done;
b. the offending office holders or their allies might be easily chosen as convention delegates;
c. frequent conventions would “deprive the government of that veneration which time bestows on every thing.”
Having canvassed the best ideas available at the time, Madison concludes that there is nothing extrinsic to the balance of power system that can be counted on to keep political leaders in their place. The check must come from within. As Madison puts it in Federalist 51: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”
It is safe to assume, in Madison’s reasoning, that men will be ambitious for power. This suggests that Congressmen, as such, should want to check the power of the executive, as such. The critical advantage of the system of checks and balances is that it gives them lawful, ordinary means by which to do this–a marked improvement on the appeals to arms that had resolved British “separation of powers” disputes for more than 500 years at the time of the American founding.
But today office holders have a different sort of ambition. Instead of an (honorable or not) desire to maintain the “constitutions rights of the place,” they simply want to maintain the benefits of the place. And ideationally, the commitment of many Congressmen is not to the Constitution (including its balance of powers), but to an understanding of politics at fundamental odds with the Constitution.
Hence the cases of Senator Landrieu and State Treasurer Grimes. As we’ve seen, Progressivism, from its earliest days, saw the Constitution as an impediment to be overcome rather than a manual for legitimate political action. There is no a member of the Democratic Congressional caucus who can claim any fundamental disagreement with the centralizing tendency of the Obama Administration–either in drawing power to the national government or in centralizing national power in the executive branch. As for the more base ambition for the benefits of office–their actions in “opposing” the new climate change regulations speak for themselves, a campaign gimmick that neither the voters of Louisiana or Kentucky should take seriously.
Of course, no one in the Washington media-political complex was abuzz with chatter about Landrieu and Grimes last week. Their political act is the new norm–and, therefore, perfectly banal. Rather, the story was Prof. David Brat, whose principled constitutionalism is the new heresy–to be exposed and denounced with all the righteous indignation of the medieval inquisition.
Yet no matter what this regime’s scribes record and report, what becomes of a Republican Party led by Constitutionalists is much less problematic than what will become of a republic that isn’t.
David Corbin is a Professor of Politics and Matthew Parks an Assistant Professor of Politics at The King’s College, New York City. They are co-authors of “Keeping Our Republic: Principles for a Political Reformation” (2011). You can follow their work on Twitter or Facebook.