JOINING THE SEPARATED POWERS
by Walter M. Brasch
American Reporter Correspondent
BLOOMSBURG, Pa. -- The Supreme Court received advice from a self-proclaimed constitutional scholar, civil rights analyst, and national educator recently. Yes, that was President George W. Bush.
This is the same President who, just after the November 2000 general election and while his political future was still undecided, garbled a basic premise of the Constitution. He told the nation: "The legislature's job is to write law. It's the executive branch's job to interpret law." Actually, it's the judiciary's job to interpret law; it's the job of the executive branch job to enforce it. The same President 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 proud parent of twin social butterflies 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 also once 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 President Bush 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, the President 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 ruled this week on that issue; they could have significantly modified or even rejected a quarter century's worth of affirmative action programs. While the basis of affirmative action is to provide certain minorities opportunities often denied them, the University of Michigan admissions policy appears to extend the original concept by allowing certain groups extensive "points" on the admissions tests on the basis of their race, while excluding admission on the same basis to highly-qualified and high-achieving whites.
The Michigan interpretation may very well be divisive, unfair, and even racist, and indeed the Court's decision rejected purely race-based admissions standards while permitting broader programs aimed at improving the lot of the disenfranchised in America. But the conservative base of the Republicans wanted to end all affirmative action.
President Bush has supported limited affirmative action programs, although no one will ever confuse his support with that of fellow Southerners, Presidents Lyndon Johnson and Bill Clinton, who used the power of their office to demand affirmative action programs with a strong race-based intent.
But the Constitutional issue isn't whether Presdent Bush is right, but whether or not he is trying to use the power of the executive branch to influence the judiciary.
Presidents, through their attorney general or U.S. solicitor-general, often file legal briefs with the federal courts to influence decisions, and those 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 he does. The President's staff can even influence Congress to change policies and leaders. This became even clearer when President Bush and his senior staff decided that Senate Majority Leader Trent Lott was an embarrassment to the Republican Party and had him removed.
But the Constitution is clear about the separation of powers. When the Founding Fathers established this nation and its Constitution, they created the executive, legislative, and judicial branches as separate and independent, yet interwoven entities. Their system of checks and balances, which dates back to ancient Greece, was designed to prevent our nation's leaders from ruling as dictators.
The first major test of that system was Marbury v. Madison in 1803, in which the Supreme Court 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 become a Constitutional crisis. It is one in which all three branches - the Republican-dominated Congress, the Republican executive branch, and the Republican-dominated Supreme Court - may be involved. The crisis began with the Supreme Court voting 5-4, along political lines, to hand the 2004 election to President Bush. It was extended by public comments by a grateful President who is now issuing his own "opinions" about how that Court should vote. If this encroachment, no matter how small or insignificant, doesn't end, we may 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, the primary authors of the vital documents that established our nation, had different political philosophies and constantly fought over numerous issues. But, among the many areas they did agree upon was the need for a Bill of Rights - weakened by the President's war on terrorism legislation - and the separation of powers, which he has now seen fit to join.
Walter Brasch is professor of Journalism at Bloomsburg University and the author of 13 books, inclduing "The Joy of Sax: America During the Bill Clinton Era." Contact him at www.walterbrasch.com