Comment Re:This is what I don't get abvout the US governme (Score 1) 72
Well, based on your post I'll assume you haven't read much about US history either. You probably think the Revolutionary War was about "taxation without representation" too. (It wasn't).
What the fuck does US History have to do with it? I have literally read the commentary and notes from the Constitutional Convention. You can too. I can't figure out if you're making shit up because you're ignorant but don't know it, ignorant but don't want to appear it, or are just gaslighting. You're confusing Separation of Powers with Federalism. They are separate things. It doesn't matter how many times you try to say that Seperation of Powers meant Federalism- you'd still be wrong. And I can back that up. You can't.
I know the difference between SoP and Federalism.
What you seem to be confused about is my saying the Federal government wasn't created in three branches so that they'd fight each other and keep each other in check. Such a system would be idiotic.
The powers vested in each branch weren't done so to be "checks and balances" on the other branches. They were split that way based on what made sense.
That's why the Legislative Branch holds the majority of Federal power.
But hey, let's look at what powers the Executive Branch has and talk about why it has them. Maybe we can find some of those checks and balances there.
1) Commander in Chief of the Army, Navy, and Milita.
You can't command an army by committee. This has been known since ancient times. That's why Rome elected a Dictator to rule during war time.
But, since the founders knew how *that* turned out, they gave the Legislature the power to declare war and peace. And since there was no army during peace-time (in those days) Congress could disband the army by declaring peace. And by refusing funding since they had spending authority (soldiers aren't going to fight if they aren't paid).
Advantage: Legislature
Now this has been somewhat subverted with the nebulous "Authorization for Use of Military Force" that Congress has been using the last several decades in lieu of actually declaring war. The subversion comes insofar as it gives a wider discretion for the Executive to take actions that might lead to a war, but regardless, the power still ultimately comes from the Legislature.
2) Grant Pardons
Is this a check against the Legislature? Some people believe so. The idea generally being the Executive can "check" the Legislature passing unjust laws by pardoning people for breaking them.
On the surface it sounds like it makes sense, but if you really think about it, it doesn't. So why give the Executive Pardon power if not to check the Legislature?
Well, since this one isn't so obvious, let's go the the source:
https://founders.archives.gov/...
"Mr. Madison, adverting to Mr. Mason’s objection to the president’s power of pardoning, said, it would be extremely improper to vest it in the house of representatives, and not much less so to place it in the senate; because numerous bodies were actuated more or less by passion, and might in the moment of vengeance forget humanity."
So, the reason is because it was believed that a group of people are less humane than a single person.
But what about the Executive using Pardons to subvert the Legislature, you ask? Maybe it wasn't *intended* as a check against them, but it can be used against them, you say.
Well, let's go back to the source again:
"There is one security in this case to which gentlemen may not have adverted: If the president be connected in any suspicious manner with any persons, and there be grounds to believe he will shelter himself; the house of representatives can impeach him: They can remove him if found guilty: They can suspend him when suspected, and the power will devolve on the vice-president: Should he be suspected also, he may likewise be suspended till he be impeached and removed, and the legislature may make a temporary appointment. This is a great security."
Now, he was specifically responding to a hypothetical case whereby the Executive could pardon crimes they were ultimately responsible for, and that isn't the same as the hypothetical "check" against the Legislature, but that is besides the point.
The point being that if the Executive were to misuse their Pardon power, a remedy exists: Impeachment.
Advantage: Legislature
And not to put too fine a point on it, but this remedy exists for many other scenarios whereby the Executive might seek to undermine the will of the Legislature. While the Constitution lays out only three reasons for impeachment: Treason, Bribery, and "high Crimes and Misdemeanors" that last one doesn't mean what most people assume it does. It doesn't refer only to literal crimes and literal misdemeanors, the phrase itself was a fungible term.
3) Make treaties
It's obvious you need a single authority to negotiate treaties. You can't have every state negotiating it's own treaties, or even the Legislature. It would be a nightmare.
But, the Legislature has to ratify the treaties.
Advantage: Legislature
Now, this has been somewhat subverted by calling them "agreements" and not "treaties." Technically agreements are "politically binding" while treaties are "legally binding." *Usually* the process starts with the Legislature authorizing the Executive to enter into an agreement. This agreement then doesn't need to be ratified but is considered to have force of law. This isn't all that unlike the Legislature using "Authorization for Use of Military Force" as a way to weasel out of actually declaring war.
On occasion however, the Executive has entered into agreements without Legislative authority. This is where the lines start getting blurred. I feel most people would say this violates a strict reading of the Constitution, though the Judicial Branch hasn't always agreed. However, this is the exception, not the rule. In the vast majority of cases the Legislature authorizes the Executive to enter the agreement. (Anyone wanting to know more can read about this here: https://www.law.cornell.edu/co...)
4) Appoint Ambassadors, Ministers, Consuls, and Judges.
Again, obvious. The Executive appointing Ambassadors and their own cabinet shouldn't need explanation.
But, the Senate needs to consent to the appointment.
Advantage: Legislature
This has started to be subverted recently by the current Executive whom has appointed numerous people that have not been confirmed by the Senate to Executive positions. At least one of them is currently before the courts. (You can read more about it here: https://www.cnn.com/2020/09/14...)
5) Appoint people during Senate Recess
Once more, obvious. If the Senate isn't available to consent, the Executive can appoint them in the Senate's absence.
But, the Senate determines when it is in recess, and Executive recess appointments are limited until the end of the current Session of Senate.
Advantage: Legislature
Now when it comes to recesses, there are intersession recesses, in which the yearly Session is officially ended before the next begins, and intrasession recesses, where the daily Session is ended but the yearly Session is still in progress. The Constitution doesn't specify during which kind the Executive may appoint. Personally, I think the intention was only for intersession, but that's my own opinion, and the courts have decided otherwise. Recent Supreme Court rulings have determined the Senate must be in recess for a minimum of 10 days. (More information on this here: https://www.senate.gov/CRSpubs...)
6) Convene both Houses or either of them on extraordinary Occasions
The Executive can force them into Session if the situation calls for it.
But, he can't force them to actually *do* anything in the Session.
Advantage: Legislature.
7) take Care that the Laws be faithfully executed
Is this a check against the Legislature? Some people believe so. The idea generally being the Executive can "check" the Legislature passing unjust laws by simply not enforcing them.
On the surface the argument sounds like it makes sense, but it's complicated when you break down the actual working of the text:
"Taking Care" does imply the Executive has some discretion in how they enforce the Laws. However, "faithfully executed" implies restrictions on that discretion. Both are vague terms and there is no clear dividing line provided by the courts as yet.
In the absence of a clear line, Congress can still fall back to their ace in the hole: impeachment. If the Executive fails to execute the Law, the Legislature can always remove them.
Advantage: Legislature
The current question of the DACA program's legality is a recent example of this. (The Supreme Court case "Department of Homeland Security vs. Regents of the University of California did not actually rule on DACA's legality, only that the order to recind it did not meat the criteria to do so. Further reading: https://www.supremecourt.gov/o...)
And...that's all the Executive's powers...and every one of them is countered by the Legislative. That's some mighty fine "checks and balances" when the Legislature can override anything the Executive does.
But what about the Judicial Branch? Let's talk about them!
Now maybe I'll shock you here, but I'm not going to argue about whether the Judicial Branch can invalidate laws by declaring them unconstitutional, (aka "Judicial Review.") Obviously they can, and obviously it was intended they can, even though it isn't expressly stated anywhere in the Constitution. This is one of those cases where it was considered so obvious they didn't feel the need to spell it out, though I think they should have, if only to silence the nutballs who want to claim they don't have that power.
What I am going to argue is whether Judicial Review constitutes a "check" on the Legislature. (Hint: it doesn't).
For this let me quote my man Hamilton, and Federalist 78:
"It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks."
Oh dear, that doesn't seem to bode well for the "checks and balances" argument at all.
The reality is, of course, that while the Judiciary can invalidate laws, Congress can simply rewrite them to be compliant. Or, if they really wanted to, Congress can set limits on the Judiciary's jurisdiction to even hear the case. Finally, just as with the Executive, if the Judiciary attempts to subvert the will of the Legislative, they can be impeached and removed.
Once again:
Advantage: Legislature
So what have we learned? That Congress holds the vast majority of the power of the Federal government and the famed "checks and balances" between the branches that most people talk about doesn't really exist, nor was it intended to, like I said in the beginning.
As for the my saying the real CoP was between the Federal government and the State governments, well I've spent enough time on this for now. It's not my job to explain how everything works to you because you didn't understand what you read.
Also, in reply to your second post below this one:
My professor was a Constitutional Scholar who I can guarantee knows more about it than either of us ever will.
I didn't mention the Electoral College, but neither would I argue it was made to "stop popular election." What it was made for, was 1) to ensure the person elected was capable of the office, and 2) to prevent foreign influence. You can read all about this yourself in Federalist 68. Here's a link:
And the relevant parts for the folks at home:
"It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations."
What is that? Deliberation? Choice? One that needs a "judicious combination" of "reasons and inducements." Electors need to "possess the information and discernment requisite to such complicated investigations." What investigations? This must be a mistaken, Electors are only intended to regurgitate the popular vote regardless of the quality of the candidate.
How about the next part, which talks about how it will prevent foreign governments from influencing the election because the Electors can't be bribed to vote for a foreign backed candidate because no one knows who the Electors will be beforehand. And how it will prevent bias / loyalty to the current Executive on the part of the Electors since Electors can't be members of Congress and thus have no preexisting ties to the current Executive.
How the fuck does any of that even make sense if Electors are solely intended to regurgitate the popular vote? If they MUST vote the popular vote, they CAN'T take foreign bribes to vote differently NOR could they vote for the existing president solely out of bias. If Electors MUST vote the popular vote, there is no damn reason to even have them be special Electors in the first place. It could just be Congress doing it because the vote is already known in advance from the popular vote! Seriously, think about some of this deeper than surface level for a second man.
I don't think there is a conspiracy to misdefine "Separation of Powers." I just know most people have been taught, at best, a supremely oversimplified view of it, and at worst a downright false one.
If you think the founders weren't against political parties because they "didn't exist" you need to read Federalist 10, it's entirely dedicated to the problem of parties and political factions. Here's a link: https://avalon.law.yale.edu/18...
Here's a quote, one that was a particular favorite of my professor:
"Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority."
Here's a favorite of mine:
"As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties."
I'll translate for you:
People make mistakes. As long as they are free to make mistakes, this will cause them to have different opinions. There is a connection between peoples' opinions and their value of themselves. (People want to be "right"). Thus, there is a connection between opinions and passion. People are passionate about their opinions because they assume they are "right" and that informs their self-worth. Some people are capable of more then others. Because we value personal property, those that are more capable are able to attain more than others. Because some people have more/less than others, there will always be a division of people into different parties.
I want to just quote the whole Federalist 10, but I'll stop here. It's a good one though.
I'm pretty much done on this topic now. Laters