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Describe and evaluate a recent episode that exposed the inherent tension between Congress and the President. What is the main issue(s)? What alternatives have been presented by various parties? How was the tension resolved, or in the alternative, how do you propose that the tension may be resolved in the future? Use specific examples.Must include 3 scholarly references.Must incorporate some of the lesson reading to develop idea/points.
In this lesson, we will discuss:
Inherent conflict between the President and Congress
Key learning concepts include:
Separation of powers
Checks and balances
This week, we explore the separation of powers. We will take a particularly close look at the
relationship between the President and Congress.
The interaction of the three branches of government is so incredibly interesting and woven
with political issues that underscore the absolute brilliance of the checks and balances that our
founders established. That system of checks and balances forms a framework. We can note
that this framework was designed to slow the process so that we would not fall victims to the
rule of a tyranny.
With that foundation comes a frustration at the slow pace of our government as the branches
continue to check each other. This week we will examine how that works in action among the
executive and legislative branches in particular, especially when they do not agree.
Beginning shortly after the events of 9/11, President George W. Bush began to significantly
take national security matters into his own hands in many respects. As Commander in Chief,
he saw this as his responsibility. As Chief Executive, he also saw this as within his rightful
duties. Some alleged, however, that he was skirting around the Congress, avoiding veto power
when he disagreed with laws, and instead issuing a disproportionate number of signing
statements in an effort to expand the power of the executive branch.
When President Obama came into office, he pledged to be more transparent than his
predecessor and conduct a more open intelligence community. While initially there was
transparency regarding disclosure of information to courts, it seems that the Obama
administration did not move far at all from the secrecy surrounding disclosure to Congress.
There are inherent conflicts that present themselves between each of the branches. As noted
above, this causes the process of making decisions in government to be especially slow at
times. However, when we examine the historical background of the United States, it becomes
apparent that the process was deliberate and the conflicts were purposeful in general. It will
be instructive to examine particular conflicts.
One such example you may remember was when President Obama proceeded to make
appointments to unfilled positions in 2012 when he declared that his authority stemmed from
the Senate being in recess. At that time, President Obama made some appointments to the
National Labor Relations Board (NLRB) while the Senate was holding pro forma sessions every
three days purportedly to thwart the president’s ability to make these appointments.
The Supreme Court got involved to check the president’s power in this case with its decision
in National Labor Relations Board v. Noel Canning (2014). This was the Court’s first
pronouncement on the scope of the president’s power to make recess
appointments. Summing up the main part of the decision, Ann Howe of SCOTUSblog explains
that the Court rejected
the federal government’s argument that the “pro forma” sessions are, in essence, just
a sham to thwart the president’s recess appointments powers. In the Court’s view, all
that matters is whether the Senate says it is in session and could at least in theory
conduct business, which is possible (even if unlikely) at the pro forma
sessions. (Howe 2014)
Speaking to this decision and the balance of powers, Senate Judiciary Committee Ranking
Member, Chuck Grassley commented:
This decision is good news for checks and balances, an essential factor in our system
of government that safeguards ‘we the people’ against unchecked government power.
The decision reaffirms that the Constitution gives power to the Senate in the
appointment process in order to protect individual liberty. The court’s conclusion is
supported by the language, structure and history of the Constitution. The court goes
so far as to condemn the President for defining the scope of his own powers in the
appointment process and says it would ‘demolish the checks and balances’ of the
Constitution. And, the court specifically rejects the arguments that the Office of Legal
Counsel for the Department of Justice made in support of the President’s actions. I
spoke against these arguments at the time they were made. The Framers of the
Constitution feared the history of tyranny that arose from executive power. The
Constitution provides for presidential nomination and Senate confirmation of
appointees for this reason. The limited exception of recess appointments is a victory
for freedom and a lesson to the President to respect legal constraints on his expansive
claims of executive power. (CHECKS, BALANCES 2013)
In recent years, there has been an increasing polarization between political parties and those
of opposing beliefs in all areas of government. Even the Supreme Court, which is supposed to
be insulated from partisan politics, is under scrutiny more than ever with regard to presidential
Your Forum assignment allows you breadth to examine a contemporary issue that has arisen
between the executive and legislative branches. As background, I have provided two readings
that assess the performance of two recent presidents and their relationship with Congress with
regard to intelligence and security matters. The two articles, “Power Grab” by Elizabeth Drew
and “A New Era of Openness?” by Kathleen Clark provide some valuable insight into some of
these conflicts that we will explore further on the forum.
During this week we evaluated the separation of powers with particular emphasis on the
relationship between the President and Congress.
Next week, we will explore the impact of lobbying on congressional decision making.
Amy Howe, Court strikes down recess appointments: In Plain English, SCOTUSblog (Jun. 26,
2014, 3:13 PM), http://www.scotusblog.com/2014/06/court-strikes-down-recessappointments-in-plain-english/.
“CHECKS, BALANCES AT WORK, COURT RULES OBAMA RECESS APPOINTMENTS
UNCONSTITUTIONAL.” 2013. US Fed News Service, Including US State News, Jan 26.
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