After Congress failed to extend an eviction moratorium, President Biden extended it. The Senate approved a bipartisan physical infrastructure bill after negotiating with the White House. The Biden administration revised food stamp nutrition guidelines, which will lead to the largest increase in benefits in the program’s history.
Whether you agree or disagree with those policy choices, political scientist and former Senate aide Greg Weiner asserts the constitutional mechanics of separation of powers among the executive, legislative and judicial branches have devolved into a parliamentary form of government.
“The result,” Weiner writes in a guest essay in The New York Times titled ‘This is No Way to Rule a Country’, “is a system capable of abusing citizens, but not governing them. It would be difficult to conjure a worse combination.”
Weiner is professor at Assumption University and a senior fellow at the conservative American Enterprise Institute focusing on constitutional law. Separation of powers was conceived by constitutional architect James Madison as a fluid mechanism to prevent or block tyrannical actions by a president, lawmakers or judges. Weiner quotes French political philosopher baron de La Brède et de Montesquieu, who said liberty rests on separation of powers “acting independently”. Concentrated power, Montesquieu warned, is the “very definition of tyranny”.
“The acid test of separation of powers is whether Members of Congress are willing to assert their authority against a president of their own party,” Weiner says. “Democrats failed that on evictions, just as Republicans did by handing off authority to President Trump. Given this bipartisan consensus for presidential authority, it may be time to acknowledge reality: The concept of the separation of powers has collapsed in the United States. We have become a de facto parliamentary system in which competing parties battle for executive power.”
Weiner adds that parliamentary systems have virtues, but the slow evolution of the US government has instead “acquired all its vices”. “A parliamentary system typically has the effects of discouraging demagogues and ensuring competence by seasoning leaders on the journey from the backbenches to the ones on the front. By contrast, three presidents – George W. Bush, Barack Obama and Trump – arrive at the White House as either newcomers or late-comers to national office.”
“Parliamentary systems also feature vigorous debates and real consequences where governments rise or fall on the basis of their legislative agendas,” Weiner says. “Debates in Congress are largely stagecraft, with actual governing relegated to a vast executive branch empowered to turn vague laws into detailed policy.”
This is a stunning analysis for a nation bracing for mid-term congressional elections in 2022 that will be influenced by reapportionment, redistricting, gerrymandering and voting restrictions – and will largely serve as a national plebiscite on Biden administration policies. Weiner argues it won’t matter which party takes control of the House and Senate because Presidents, not Congress, make policy.
Worse still, Weiner suggests, control of one or both houses of Congress won’t necessarily translate into policy changes. Republican control of Congress would block major Biden initiatives. Unless Democrats held 60 seats in the Senate, which seems improbable in the 2022 election, its initiatives can be blocked by the filibuster. If the House and Senate are under split control, the next session of Congress will mostly center on political squabbling across Capitol Hill, serving as a prelude to the 2024 presidential election.
“Legislative debates now rotate around the President, often because the presidency is seen as an instrument for defending of capturing a legislative majority,” Weiner write. “That is characteristic of a parliamentary system. But because one is either for or against the President, a system that orbits the White House strips legislators of their ability to exercise independent judgment from issue to issue. If legislative issues are simply symbols of presidential fortunes, we should expect partisan gridlock.”
The genius of separation of powers, Weiner contends, is to “empower all three branches of government to check one another…and to force the nation to look at issues from different angles: the immediate and parochial perspectives of representatives, the national view of presidents and the constitutional outlook of the courts.”
The acid test of separation of powers is whether Members of Congress are willing to assert their authority against a president of their own party.
The risks are palpable, Weiner says. “Between elections, presidents essentially run American government. Republicans and Democrats in Congress play the auxiliary part of either supporting or opposing whoever occupies the White House. Congress generally cedes the initiative on legislation to the executive branch, reserving for itself the role of merely reacting to the president.”
In his op-ed, Weiner avoids pointing to specific cases where empowered Presidents have arguably overstepped their authority. He might have included these recent examples: Republicans and the Supreme Court have said President Obama lacked the authority to shield so-called Dreamers from deportation. Democrats impeached Trump twice for abuse of power, and that was before the January 6 incursion on the Capitol and recent reporting about Trump administration tampering with the US Census.
The reality of Weiner’s argument can be seen every day in stories about the 2022 election – Democrats fundraising for Senate races to give them larger margins in the Senate and House to act on Biden initiatives; Republicans raising funds to flip the House and Senate to block Biden initiatives; Trump supporting or opposing congressional candidates based on their personal loyalty to him.
The gridlock Weiner predicted is evident, too. It seems unlikely voting rights legislation will move in the face of aggressive state legislation and recent US Supreme Court rulings. Immigration reform is dead-centered. Major climate change legislation is stymied. Formation of an independent commission to study the January 6 Capitol attack was blocked.
The bright side is Congress seems headed toward passage of a bipartisan physical infrastructure bill and a budget reconciliation resolution that invests in human infrastructure. The two measures have a tenuous political relationship as they move together through Congress that could implode, endangering both legislative initiatives.
Even these potential achievements underscore Weiner’s argument: The compromise on the physical infrastructure bill resulted from Biden, who served 36 years in the Senate, insisted on it because of a campaign pledge. Meanwhile, Trump, who never held public office before his 2016 presidential election, urged congressional Republicans to oppose the compromise because it would help Democrats in the 2022 midterm elections.