The Erosion of Checks and Balances Print
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Written by Grassley Press   
Tuesday, 31 January 2012 13:11

Prepared Floor Statement of Senator Chuck Grassley

Ranking Member of the Senate Judiciary Committee

The Erosion of Checks and Balances

Monday, January 30, 2011

One week ago today, I addressed the Senate on President Obama’s decision to bypass the Senate and the Constitution by making four “recess” appointments at a time when the President’s recess appointment power did not apply.  I explained in detail why the legal memo released by the Obama Administration attempting to justify President Obama’s actions did not hold legal water.  Last Thursday, I laid out the case that this is not an isolated incident or a technical legal squabble.  Rather, the President’s recent actions are part of a pattern of disregard for the constitutional system of checks and balances.  Today I would like to address why such criticisms are justified and why they are necessary.

First, is it legitimate for a U.S. Senator to criticize a legal opinion issued by the Office of Legal Counsel and the Senate confirmed head of that office?  I have no doubt that senators may criticize such opinions and, when the facts warrant, ask whether that office and its head are exercising the independence that is required for the Constitution to be upheld.  Some in the media apparently disagree.  They say that it is wrong for a senator to ever criticize a Senate confirmed official’s independence and judgment.  They say that all a senator can do is criticize the official’s substantive arguments.  Nonsense.  When the media makes these claims, it merely  seeks to divert attention from the weakness of the opinion’s actual conclusions and reasoning.

In my statement last week, I laid out my disagreements with the content of the Office of Legal Counsel opinion.  Of course, senators and administration officials can reach different conclusions on the law.  Each can have a reasonable point of view.  But that is not the case here.

If the Office of Legal Counsel is to be the “constitutional conscience of the administration” that some in the media characterize it to be, it must exercise a certain level of independence.  As I mentioned in my statement, when a President who takes an expansive view of his power asks Justice Department officials who  owe their job to him whether he has the constitutional or legal authority to take action, there is always the chance that pressure will overtake their responsibilities to provide their best legal judgment.  That is why at Ms. Seitz confirmation hearing and in follow up communications, we took such painstaking effort to give her the opportunity to state on the record her commitment to providing independent legal advice.  To make sure that she would place loyalty to the law and the Constitution above her loyalty to the President.

Ms. Seitz promised to act independently.  She promised not to stand idly by if she thought the Constitution was being violated.

The only way to tell whether the office has given independent advice – the only way to tell whether pressure has been resisted – is to review the arguments and reasoning that OLC provides.  The media cannot address whether criticism of the head of that office is independent and has used good judgment without such a review.  It is not enough that the media might agree with her conclusion.

In this case, the analysis in the Office of Legal Counsel opinion was so poor as to raise legitimate questions concerning judgment and independence.  The Office of Legal Counsel is supposed to give the President objective legal advice before he acts.  It is not supposed to provide a weakly thought out rationalization for a presidential decision to act that has already been made.  Here, the arguments in the opinion are so weak that a fair-minded person can question the independence and judgment of the opinion’s author.

For instance, the opinion is internally inconsistent.  It correctly recognizes that a president’s ability to make recess appointments turns on the capacity of the Senate to conduct business.  But in determining whether the pro forma sessions constitute a recess, the opinion does not consider at all the capacity of the Senate to conduct business and on what it could do.  Rather, it relies on what individual senators said.  And it ignores not only what theoretically the capacity the Senate had to act, but even its actual actions.

Similarly, the established meaning of “recess” is the same each time it appears in the Constitution.  Giving the term the same meaning means that the President can make recess appointments, but that this is a limited power.  The Office of Legal Counsel opinion, contrary to clearly established precedent, inconsistently defines the term “recess” differently when it is used in different parts of the Constitution.  The only thing consistent in the opinion is that it interprets “recess” each time in a way that expands the power of the President to make recess appointments, and in such a way as to leave open the question whether that power is limited in any meaningful way.

Former federal circuit judge Michael McConnell, himself a former Justice Department lawyer who has defended presidential power, found the arguments in the Office of Legal Counsel opinion to be so “implausible” that “[i]t is difficult to escape the conclusion that OLC is simply fashioning rules to reach the outcome it wishes.”  Since the outcome the Office of Legal Counsel wishes is to expand presidential power contrary to the text of the Constitution and also many decades of historical practice, it is quite fair to question the independence, judgment, and adherence to statements made during the confirmation process by the head of that office.

The media, again focused more on personalities than on substance, will say that the Bush Administration reached a similar conclusion, so how could Ms. Seitz be criticized?  First, President Bush did not make recess appointments when the Senate was in pro forma session.  Second, President Bush did not even claim that he could make such recess appointments, while declining to do so.  Third, his Office of Legal Counsel did not issue any opinion that would be binding on future Justice Department advice.

Unlike the public actions of the Senate confirmed head of OLC, a lower level official in the Bush Administration apparently wrote a secret memorandum to the file on this subject.  The existence of such a memorandum was not known until the Office of Legal Counsel opinion referred to it and sought to rely on it.  It is not possible to evaluate the reasoning of that memorandum because the Department of Justice has not agreed to release it despite my request that it do so.

If the Office of Legal Counsel is to exercise the independent judgment that is necessary for it to properly perform its functions, it cannot rely on secret memos from lower level officials.  That approach creates incentives for the Office of Legal Counsel heads to avoid accountability.  An incentive is created for the preparation of secret memoranda that make outlandish claims of presidential power.  No one knows of the memo, so its arguments do not face the transparency of public scrutiny.  The President and the Office of Legal Counsel take no responsibility for its conclusions.

Then the Office of Legal Counsel later issues a public opinion on the subject.  To bolster very weak arguments, it cites the earlier memo.  It avoids transparency as well, by keeping the memorandum secret, so no one can see that the opinion’s weak arguments may be supported by only other weak arguments.  And it avoids accountability by suggesting that this question was already decided, by an earlier Office of Legal Counsel.  Instantly, the number of administrations that support expanded presidential power goes from zero to two, neither one of which is said to be responsible for that expansion.  That bootstrapping can never lead to a reasoned, objective analysis of presidential power.  It cannot produce the independent Office of Legal Counsel that Ms. Seitz promised the Senate that she would provide.

The media has also made the strange argument that Ms. Seitz’s opinion must be professional and her judgment and independence cannot be questioned because of her high professional reputation.  This is backward.  The legitimacy of the arguments contained in a legal opinion is not established by the reputation of the person who wrote them.  Reputations are not static.   They are established by the quality of the professional work, not the other way around.

In the past, a Democratic prominent senator called for a judge to resign because of his legal work as Office of Legal Counsel head.  The Washington Post in an earlier editorial criticized the opinions of other Bush Administration OLC lawyers as displaying “the logic of criminal regimes” and “bringing shame to American democracy.”  If the Post truly believes that criticizing Office of Legal Counsel lawyers beyond the pale, they should retract their earlier opinion and condemn the far harsher rhetoric that was hurled against Bush Office of Legal Counsel lawyers.

Now I would like to explain why my criticisms were not just legitimate, but necessary.  Last Thursday, I laid out in great detail a long series of abuses of executive authority, and usurpations of legislative authority, by President Obama and his Administration.  In fact, he’s made his willingness to bypass Congress a campaign issue with slogans like “We can’t wait for Congress” splashed across the White House website.  President Obama has made the decision to run for re-election not on his record, for obvious reasons, but against Congress.  In doing so, he’s daring Congress to defend its role as the representative of Americans from each of the 50 states in the face of his unilateral agenda.

Some have suggested that this is a clever political trap laid by President Obama-that if Congress resists the President’s power grabs, it will validate his slogans and play into his electoral strategy.  That may or may not be true.  However, the stakes are greater than the next presidential election, and the implications of the President’s actions will be felt well beyond any short term political gain.

The framers of the U.S. Constitution foresaw the temptation by one branch of government to try to usurp the powers of others.  In Federalist 51, James Madison explained how the Constitution was designed to prevent power grabs through an ingenious system of checks and balances.  He wrote-

“But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition.”

Of course, this assumes a desire on the part of each branch to guard its constitutionally granted powers.  If some members of Congress are not willing to resist an encroachment because they place party loyalty above their constitutional responsibilities, or if members are reluctant to push back for fear of political consequences, then the system of checks and balances will not work as intended.  All members of Congress swore an oath to support and defend the Constitution of the United States.  That is our first obligation.

I would like to be clear that this is not an argument about constitutional semantics, but one of fundamental principle.  As Madison explains in Federalist 51, the “separate and distinct exercise of the different powers of government” is “essential to the preservation of liberty.”  This also goes beyond an argument about the ends to which President Obama has used the new powers he has claimed.  His agenda is controversial to be sure, or he would not have had to bypass Congress.  Still, even those who support this President’s policies should not be so quick to look the other way.  Once the walls separating the powers allotted to each branch of government are eroded, they will not easily be rebuilt.

The most eloquent expression of the philosophy on which our nation was founded is in the Declaration of Independence.  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”  Based on these fundamental principles, the Constitution laid out a form of government designed to protect individual rights by resisting the concentration of power.  This can be frustrating to those who would like a more activist government.  Still, these features of our Constitution perform an important role in preventing one faction of Americans from dominating another.

I am sure that President Obama is convinced that his agenda is what’s best for the country and that the ends justify the means in pursing that agenda.  Naturally, he doesn’t see any danger in concentrating power in the Presidency, because he believes he will use that power wisely.  Moreover, he has gone out of his way to identify himself with the school of thought that the constitutional separation of powers is an outdated barrier to change.

Last month, President Obama gave a speech in Kansas in which he sought to link his agenda to Teddy Roosevelt’s famous “New Nationalism” speech at the same place in 1910.  The original speech marked the beginning of Roosevelt’s break with many of his past policies and with the incumbent Republican president, William Howard Taft.  Roosevelt then went on to challenge Taft in the 1912 election on the Progressive Party ticket.

In the 1910 speech, which President Obama paid tribute to, Roosevelt described his New Nationalism as “…impatient of the impotence which springs from overdivision of governmental powers.”  He explained that his philosophy, “…regards the executive power as the steward of the public welfare.”  The progressive view of the separation of powers was described at length in Woodrow Wilson’s Constitutional Government in which he writes, “The makers of the Constitution constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and allow to no single part of organ of it a dominating force; but no government can be successfully conducted upon so mechanical a theory.  Leadership and control must be lodged somewhere…”  Of course, he determines that President is where this “leadership and control” should be lodged.

This philosophy seeks to fundamentally transform the United States from a nation founded on the principle that protecting the unalienable natural rights of each citizen is the paramount goal of government, to one that empowers an enlightened elite to take whatever actions they deem necessary to correct perceived wrongs in society.  This may start out with good intentions.  But, there is no guarantee that, once our constitutional protections are gone, future leaders will always act in the most enlightened way.  In fact, the single-minded pursuit of a better society at the expense of individual rights has led to some of history’s worst tyrannies.

Moreover, not only is a concentration of power in the Executive Branch contrary to the founding principles of our nation, it is foreign to the realities of American civic life.  With a country as large and diverse as ours, no one individual can claim to speak on behalf of all Americans.  Our constitutional system, based on federalism, separation of powers, and checks and balances, helps ensure that each American has the opportunity to live their life as they see fit.  I return to the words of James Madison, “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.”  The voices of all Americans deserve to be heard through their elected representatives in Congress.  That is what is at stake here.  Those of us who were elected to represent the people of our state should do just that or we don’t deserve to be here.

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