The SEPARATION OF POWERS

7/12/13

The Separation of Powers

This nifty little idea as you know is contained in our Constitution. It has made the voting public comfortable for decades and decades. It allows people to split their voting ticket without guilt as to party or platform. It reassures voters that as long as the House is of one party, the Senate another, things can’t go too far wrong.

(Well, we know how well that works lately, don’t we?)

We also, of course, separate the judiciary from the electoral from the executive. Again, how bad can this be, people must have thought? Codifying the separate powers of each branch simply makes governing reasonable, sane, and unable to run into the shadowy arms of totalitarianism.

Today in Washington, we have power vacuums.  Congress is without decisive strength to make decisions of nearly any kind without being tied down in partisan wrangling.  The President has, and is, making himself largely irrelevant to the country well in advance of his “sell buy date.”  These two branches of our government are hopelessly embroiled in a pissing contest which neither side appears to be winning.

Despite every good intent to keep one branch of the government equal to and different from another, we are not going to argue the wisdom of these provisions today.  But we do want to point out how easy it is to ignore them unwittingly, and to accidentally give one man almost unlimited power to make, or remake, the American sense of fair play and equality before the law.

Without putting too fine a point on it, that one man today is Chief Justice John Roberts, Jr., he of the Supreme Court. Even more frightening is that this same John Roberts, Jr., is he of the FISA court system about which we are leaning so much from so many these days.

A brief review of Justice Roberts’ recent past. He led the court into deciding that money was more important than honesty (Citizens United v. the FEC). He was the standard bearer for an idea whose time (and money) had most definitely arrived: if a candidate for any office — local, state, national — has the right financial backing from big businesses and corporations, he (or she) can ignore entirely the will of the people he or she is theoretically to represent. Which is to say, anyone in Congress at this time has probably a ninety per cent chance of staying there…for as long as he or she wants. The people who vote matter not one whit. He or she neither needs their money nor their support and approval.

After this, Justice Roberts – clearly trying to remain a sensible presence and a relevant one on the court, and to keep the Court itself in a position that pretended to be bi-partisan, allowed that the personal mandate in the new Healthcare law may be out of bounds, but the entire act is legal because what it asks of the US citizen is a tax, not a penalty. The government has that right.

This viewpoint is greeted with relief by many, who believed it also showed how current Roberts is in terms of how the country has needs and feelings.

Quick cut to the revisiting of the Civil Rights Act of 1965, and the Fifteenth Amendment. This review was asked for by the Court. The case did not arise from a plaintiff/defendant quarrel. And its treatment could have been foretold by any bystander. Naturally, the Court, led by Chief Justice Roberts, decided that no state should be made to justify its election rules in preference to others. Which is to say, while eleven states (largely in the South) had recently applied for redistricting or gerrymandering, and been denied by the US Department of Justice (as the Civil Rights Act of 1965 and its subsequent reconfirmations directed), this should not be allowed to stand. Surely there may still be prejudice, but the North is as prejudiced as the South (which, alas, is true) and therefore no state should be compelled to appear before the Justice Department if it wants to alter its voting apparatus.

What this means in simple English is that protecting the rights of individual voters at the ballot box, in this Court’s view, has nothing to do with anything. All is fair in love and war and electioneering. States may be allowed to proceed as they wish without regard for the US Constitution.

(Surely this was not what the Founding Fathers had in mind when they created a Supreme Court, the demolition of the very basis on which we call ourselves a Nation of Laws.)

Now, we are the first to admit our admiration for the brilliance of Justice Roberts. Following this performance by one day only, he decided that the Defense of Marriage Act was unconstitutional and that California’s Proposition 8 should be repealed, giving same-sex couples a shot at Federal benefits heterosexual couples have had for so long.

This too was a sympathetic Roberts move. More, its announcement immediately on the heels of the evisceration of the Voting Rights Act did what the Court must have known would do. The press focused entirely on DOMA and Prop 8, and hardly a newspaper or cable show mentioned the death of the American voter.

Folks, this is dazzling politics. It has to be lived to be experienced and admired.

Now, it’s perfectly possible for most of us to nod and read something else, watch a different television program, go to Fenway. We understand that the electorate rarely reacts until and unless it feels threatened, and in these instances, everything that threatened us was camouflaged. It was an easy statement to make: “I don’t care. It’s no skin off my nose.” It’s just as easy to reject the Bill of Rights because one feels innocent of all wrong-doing and hence the Bill of Rights, or the loss thereof, doesn’t apply to any of us really nice people.

Whether or not one decides Edward Snowden is a hero or a traitor, the important part of his recent actions is that we have discovered through them that the government has not been square with us. We’re grown-ups, and we understand that not everything the government does or allows is better known than unknown.

But the revelation this week of how the FISA Court – that institution which is to oversee some of the more clandestine and perhaps threatening decisions to democracy – is comprised came as a real and total shock. It demonstrated to us that our court system, not just the FISA Court or the Supreme Court but most probably all our Courts are so heavily political that they can no longer demand our respect or even, perhaps, obedience. For a nation of laws, this is not good news.

The FISA Court is comprised of eleven members who work in total secrecy. When a case comes before it, only the government side is presented. There is no opportunity for a defendant to combat charges or seek to explain how, in fact, he or she is not worthy of government bird-dogging, eaves-dropping, and perhaps even eventual arrest.

The big revelation was who or what body selects these eleven in theory non-partisan judges. Why, guess what? The honcho is none other than our old pal, John Roberts, Jr., Chief Justice of the Supreme Court. Mr. Roberts, over the past few years, has appointed eleven new FISA judges. Ten of these are Republicans; one is a Democrat. And to demonstrate how stacked the deck really is, the government in 2012 made 1789 requests to conduct electronic surveillance on US citizens. The Court approved 1788 of these and the government withdrew only one case.

As noted by the New York Times, it’s possible that not a single one of these 1788 requests violated established law BUT the public will never know because no one was allowed to make a counter argument. The FISA Court has morphed into something that exists outside the justice system, even as its power grows in way we can’t see.

What we can see, however, is the continuing political influence of Justice John Roberts. He’s fairly young and could stay on the bench for perhaps thirty more years, silently and secretly undermining so many of the elements of which this country had grown proud. All this to favor his political party and his political philosophy.

Somehow Justice Roberts needs to be reminded that in a position as august as his is, his task is not partisan but rather to seek to provide guidance and governance to the entire nation, not just a fraction of it.

The parts of our country in which Roberts seems most interested are corporations, big business, employers generally, voting regulation, and – surprise – equal rights for same sex couples. How that got in there we’ll never know.

The parts of our country in which he has so far shown little or no abiding interest includes the poor, unemployment benefits, food stamps, education, and Mitt Romney’s 47 per cent.

This has to change. For without transparency and bipartisanship, our country loses what it has been fighting for for more than 200 years: equality, justice, opportunity, safety, and the world-wide status as first among equals, which is to say the country all other countries admire, emulate, and wish to follow.

Who’s going to take on the job of sitting Mr. Roberts down and explaining in simple terms the real damage his Courts — BOTH of them — is doing to the United States of America?

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