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CounterPunch
January
18 / 19, 2003
Constitutional Separation of
Powers
Addressed to
the 9's
By WALT BRASCH
The Supreme Court received advice from constitutional
scholar, civil rights analyst, and national educator George W.
Bush. Yes, that George W. Bush.
The same one who just after the November
2000 general election while his political future was still undecided,
gagged on a basic premise of the Constitution, telling the nation,
"The legislature's job is to write law. It's the executive
branch's job to interpret law."
The same one who has frequently used
his own intelligence as an example of why he's a strong supporter
of educational reform. "You teach a child to read,"
said the President in 2001, and he or her will be able to pass
a literacy test." The same one, the proud parent of twin
social butterflies, who told a CNBC audience, "Laura and
I really don't realize how bright our children is sometimes until
we get an objective." The Oil-in-Chief millionaire who explained,
"Rarely is the question asked: Is our children learning?"
This is the president who so eloquently
told an audience in St. Louis, Mo., "If affirmative action
means what I just described, what I'm for, then I'm for it."
The same George W. Bush who summed up his political and Constitutional
philosophy as "I know what I believe. I will continue to
articulate what I believe--I believe what I believe is right."
Combining his knowledge of law, education,
and affirmative action, President Bush advised the Supreme Court
that an admissions policy at the University of Michigan law school
is "divisive, unfair, and impossible to square with the
Constitution."
The Supreme Court will rule in March
on that issue that could significantly modify or even overturn
a quarter-century of affirmative action programs. While the basis
of affirmative action is to provide disenfranchised minorities
the opportunities they have traditionally been denied by a majority
culture, the University of Michigan interpretation appears to
extend the original concepts by allowing certain groups extensive
"points" on the admissions tests on the basis of their
race, while excluding admissions to highly-qualified and high-achieving
Whites. The Michigan interpretation may very well be divisive,
unfair, and even racist. The conservative base of the Republican
party wants the end of all affirmative action. President Bush,
however, has supported limited affirmative action programs, although
no one will ever confuse him with fellow Southerners Lyndon Johnson
and Bill Clinton who used the power of their office to force
entitlement programs for all Americans.
But, the Constitutional issue isn't whether
George W. Bush is right, but that he is trying to use the power
of the executive branch to influence the judicial branch.
Presidents, through their attorneys general
and White House solicitors, often file legal briefs with the
federal courts to influence decisions, actions entirely within
the Constitution.
All presidents use liaison offices to
lobby Congress to either kill legislation the President doesn't
want or to move legislation the President does want. The President's
staff even influence Congress to change policies and leaders.
This became even clearer when President Bush and his senior staff
decided that Trent Lott was an embarrassment to the Republican
party and successfully had him removed as Senate majority leader.
But, the Constitution is clear about
the separation of powers. When the Founding Fathers established
the nation and its Constitution, they established the executive,
legislative, and judicial branches as separate and independent.
The system of checks and balances, which date to ancient Greece,
was established to prevent the majority of the nation's leaders
from ruling with dictatorial authority.
The first major test was Marbury v. Madison
(1803) in which the Supreme Court forcefully ruled that "it
is emphatically the province and duty of the judicial department
[not the legislative or executive branches] to say what the law
is." Several Supreme Court decisions during the past 200
years have reaffirmed the separation of powers and the recognition
that the "encroaching power" of both the legislative
and executive branches upon the Constitutional independence of
the Court system and upon each other must not be tolerated.
During the past two years we have seen
what could be a Constitutional crisis, one in which all three
branches--the Republican-dominated Congress, the Republican executive
branch, and the Republican-dominated Supreme Court--may be involved.
It began with the Supreme Court voting 5-4, along political lines,
to hand the presidency to Mr. Bush. It was extended by public
comments by a grateful President who may now believe he can issue
"opinions" about how that Court should vote. If this
encroachment doesn't end, we will soon see a Supreme Court that
will rule that the attorney general has every right to cut apart
the nation's civil liberties and its First Amendment rights.
James Madison and Thomas Jefferson, primary
writers of documents that established the nation, had different
political philosophies, and constantly fought over numerous issues.
But, among the many areas they did agree upon was a need for
the Bill of Rights--and a separation of powers.
Walt Brasch,
a national award-winning reporter and editor, is professor of
journalism at Bloomsburg University. He is the author of 13 books,
including The Press and the State, and the current book, The
Joy of Sax: America During the Bill Clinton Era. You
may contact him through his web-site www.walterbrasch.com.
He can be reached at: brasch@ptd.net
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January 11
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