2008-11-14 / Columnists

From the Editor's Desk

Commentary By Howard Schwach

Now that Barak Obama has won the presidency, the obvious question that he will have to answer is, can he govern and attain any of the goals that he outlined and promised during the long and contentious campaign?

That question is not intended as a knock on Obama, although he has something to prove because he has no executive experience to talk about. The question revolves around Obama's relationship with the Senate, a legislative body that all but abdicated its constitutional powers and duties to the executive branch during the Bush years, and perhaps before.

Jonathan Mahler wrote what I consider to be the definitive piece on the "Imperial Presidency" in last week's New York Times Magazine. What he wrote reinforced what I have believed for a long time. Specifically, that the balance of power dictated by our Founding Fathers no longer exists.

For those who don't know what I'm talking about, here is a quick, albeit simplistic, history lesson.

When the Constitutional Convention was in session in Philadelphia, the drafters of the Constitution set up a government that had three separate but equal branches - the Legislative Branch (to make laws), the Executive Branch (to carry out the laws made by the legislature and to recommend laws) and the Judicial Branch (to dispense laws). (At least at the beginning, judicial review of our nation's laws was still some years away.)

These three branches were to act as a check, or counterbalance, on the others. As a compromise, the Founding Fathers set up a bicameral legislature — an upper house (the Senate), with equal representation for all of the states regardless of population and a lower house (the House of Representatives) with numbers dictated by population. The compromise allowed those who were afraid of the rule of the common people (read 'mob') by creating an upper house that would certainly be made up of people with like ideas and ideals as those of the Founding Fathers themselves while allowing the larger states to have proportional representation in the lower house.

In 1787, Thomas Jefferson, who had been representing the new government's interests in France, came back to Philadelphia.

He asked George Washington why the founders had added the Senate to the previously planned House of Representatives.

"Why did you pour that coffee into your saucer," Washington reportedly replied.

"To cool it," Jefferson answered.

To that, Washington answered, "We pour our legislation into the Senatorial saucer to cool it," meaning that the legislation that the Representatives pushed thorough needed to be tempered by a more deliberative body of learned men. The idea was that competing interests between equals would keep any one branch of government from turning America into a dictatorship.

Mahler wrote about a comment from James Madison, another of the Founding Fathers. "Ambition must be made to counteract ambition," Madison wrote. As Mahler explains it, "America's divided system of government would depend on both the president and Congress forcefully pursuing their respective roles - and in doing so acting as a natural check on each other,"

Why this failed to happen during the Bush administration is the topic of Mahler's long essay.

And, he adds, what will also be the topic in coming months is whether or not Obama and an overwhelmingly Democratic Congress will fall into the same trap as Bush, fronted by an overwhelmingly Republican Congress.

Mahler argues that a number of imperatives were at work after September 11, 2001, not the least the fact that Congress was worried about hobbling the actions of the president in the wake of a terrorist attack on American soil.

There was lots of precedence for that kind of belief. Alexander Hamilton, who had no love for the common man, wrote, "It is the nature of war, to increase the executive at the expense of the legislative authority."

Lincoln was allowed to wipe out Habeus Corpus during the Civil War.

Roosevelt was allowed to intern Japanese-Americans on the west coast while allowing German-Americans and Italian-Americans on the east coast to remain free.

Reagan got away with Iran-Contra because the hostages were released as part of the deal.

This history, coupled with 9/11 and the Republican legislative majority, allowed the Bush administration, led by Vice President Dick Cheney, to continually erode legislative power, and particularly the power of the Senate, without much complaint.

As Mahler points out, Republican senators were often more concerned with loyalty to their party than they were with maintaining the balance of power mandated by the Constitution.

In a very real way, Cheney made the Republican legislators an arm of the executive branch rather than a co-equal branch of government.

Mahler writes that when Lyndon Johnson, the quintessential legislator, "was elevated to vice president, he suggested to Mike Mansfield, his successor as Senate Majority Leader, that he be permitted to continue presiding over the Democratic caucus [something that would have allowed Johnson, now a part of the Executive to continue sway over the legislature]. Mansfield agreed, but the rest of the caucus revolted."

Yet, during the Bush administration, Cheney regularly sat in and directed the Republican Caucus, often bringing political operative Karl Rove along.

The question now is whether or not Obama can (or even wants to) restore the balance between the Executive and Legislative Branches of government that the Constitution mandates.

Or, will he take a leaf from the Bush Administration book and treat the Democratic majority with the same disdain with which his predecessor treated his party members?

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