I testified at the earlier hearing about the separation of powers, its history and its function, and also my view that the president has in fact exceeded his authority in a way that is creating a destabilizing influence in a tripartite or three-branch system.
Now, I want to emphasize, of course, that this problem didn’t begin with President Obama. I was critical of his predecessor, President Bush, as well. But the rate at which executive power is being concentrated in our system is accelerating, and, frankly, I am very alarmed by the implications of that aggregation of power.
What also alarms me, however, is that the two other branches appear not just simply passive, but inert in the face of this concentration of authority. The fact that I happen to think the president is right on many of these policies does not alter the fact that I believe the means he is [using] is wrong, and that this can be a dangerous change in our system. And our system is changing, in a very fundamental way, and it’s changing without a whimper of regret or opposition. And so, it’s a great honor to speak with you again today about the implications, but also about what this branch can do to assert its powers and to regain balance in the system.
I am a typical Madisonian scholar. I tend to view all branches as equal, but some [as] more equal than others, and that would be the legislative branch. If you take a look at Article I and Article II, even a glance, you’ll see what I mean. The Framers, particularly James Madison, spent a great deal of time developing this institution. It is the thumping heart of our system, and it has lost a great deal of power, and that power has largely been transferred to the executive branch.
Before I talk about those options, I just simply want to note: Priorities and policies and, yes, even presidents, change. Our system is not supposed to change. It’s the guarantee that we all have. It’s an article of faith that we have with one another. It is the thing that has weathered wars, depression, and social unrest. In our system, there is no license to go it alone. There’s no freelancing. That doesn’t mean that this is not difficult. It doesn’t mean that we don’t have divisions. . . .
Recently, Congress has seemed, frankly, feckless and uncertain as to its authority. It surprises me, given the [nature of the] institution created by people like James Madison. . . .
I listed the options in my testimony that this body can consider, from direct legislative means to things like appointments, to some of the legislation that is pending. I do want to emphasize one thing, however, in closing.
This common article of faith that we have in our system has served us well. The short-term, insular victories that are achieved in this term will come with prohibitive cost. I happen to agree with many of those policies, but I do not agree with the means.
I believe we are now at a constitutional tipping point in our system. It’s a dangerous point for our system to be [at]. And, I believe that your response has to begin before this president leaves office.