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INCOMPETENCE AND THE SEPARATION OF POWERS

January 18, 2019

INCOMPETENCE AND THE SEPARATION OF POWERS

Professor Kennedy in her blog today deals in some depth with the court finding that the census question added by Wilbur Ross to the decennial questionnaire is unconstitutional, noting from the court’s language a suggestion that such an attempt was so blatantly unconstitutional on so many grounds that the court was surprised that Ross (the Secretary of Commerce) would have tried to add it. Professor Kennedy ascribed such attempt to incompetence, a not unknown quality of many other agencies of government in Trump’s Washington. I saw a silver lining in such incompetence in that it points up blind alleys in how not to run a government and spares those in future agencies the pain of making the same mistakes. Professor Kennedy asked for commentary and the following, slightly edited, was mine.

Incompetence may have saved the day in re the census issue but there are other areas where it is not saving but rather making the day worse, and not just for the day but as it serves as a precedent for future days (a kind of stare decisis). Thus Trump and his minions have decided (in effect) to pass laws under the guise of rules and regulations, when the lawmaking function is reserved solely to the Congress per Madison in the Constitution, and when we put up with Trump’s continuous usurpations of powers reserved to the other two branches, we are only encouraging him to further usurp their powers en route to his grab of all powers, aka authoritarianism, and thus laying waste to the doctrine of separation of powers.

It is long since past time for the Congress to assert its constitutional powers by passing laws that provide for preservation of such powers from executive overreach by Trump or any other president.

As a for instance, the Constitution gives the president the title of commander in chief but it doesn’t give the power to declare war to the commander in chief. That power is reserved to the Congress, so I would recommend that the majority and minority heads of the appropriate congressional committees go with the president and appear domestically on talks with Kim, Putin, Erdogan and others as part of their portfolios. Presidents are only authorized to conduct wars, not unilaterally decide to have them.

The Constitution also gives Congress the sole power of regulation of trade and commerce, yet due to a Cold War law delegating such power to the president in the case of national emergency, Trump is running around the world and rattling markets by selectively applying tariffs to goods and services in international trade, which is (though legal) another grab of power from the legislative branch which was rarely used by his predecessors and which, incidentally, could be ended easily by ridding ourselves of this Cold War legislation he is using as a pretense to exercise his merely delegated powers. What to do? Easy – end the delegation.

I could cite many other instances of Trump’s executive overreach but for time and space and will instead leave the reader with the caveat of being watchful of any executive overreach leading to a concentration of power and what inevitably follows: authoritarian rule.      GERALD         E

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