On Sunday, we will watch as a long-standing ally and a bulwark against the encroachment of communism during the Cold War radically alters its constitution by concentrating power in the executive branch of its government.
Turkey, a historically secular and westernized Middle Eastern nation, stood with the Western world as Stalin erected the Iron Curtain.
Turkey now stands ready to dispose of its long-standing form of government in favor of one that shifts policy-making power from its parliament to its executive branch.
American commentators in the United States have already begun to sermonize on the value of our separation of powers and the great advantage of connecting the people, elections and policies as directly as possible in a single law-making governmental apparatus, Congress.
These same commentators will preach Montesquieu, the spirit of the laws and our great tradition of checks and balances, as if we, as a country, have not surrendered these traditions.
In doing so, they will betray an utter lack of connection to the realities of our current system of government, which reposes remarkable policymaking power in un-elected executive officials.
This shift away from the principles of Montesquieu has given executive agencies incredible control over the private and commercial lives and activities of Americans while allowing our elected officials to abandon their responsibilities for policy-making, evade accountability for terrible or negligent decision-making, and shift the blame to the increasingly powerful bureaucracy they created. At least one set of commentators has suggested that we should begin electing executive agency heads in recognition of this fact.
One of the great accomplishments of the conservative movement of lawyers known to make up the Federalist Society has been to decry this development.
I had the good luck of encountering one at the University of California, Berkeley School of Law, as a professor. He left a lasting impression on me.
In a class titled, “The Separation of Powers After the New Deal,” professor John Manning, a former law clerk to Justice Antonin Scalia and now of Harvard Law School, exposed his group of Berkeley law students, many of us “progressives” or “liberals,” to the realities of our current administrative state.
He forced us to evaluate statutes like the Securities and Exchange Acts of the 1930s, in which Congress delegated to a new federal agency, the Securities and Exchange Commission, the power to write the rules for Wall Street and then prosecute those rules before its own employees as judges. In Manning’s entirely supported account, generation after generation of members of Congress, all constitutional officers, betrayed constitutional principles through increasingly broad delegations of power to the executive branch. Americans, justifiably befuddled by the complexity of the modern world and its regulations, or complacent or complicit, allowed them to do it.
Over time, these delegations gave the president and his unelected agency heads such power to perform legislative and judicial functions that Federalist Society honoree and legal academic professor Adrian Vermuele of Harvard Law School has written a book titled Law’s Abnegation announcing a sort of death of the law.
In this book, which has been heralded even by “liberals” or “progressives,” he argues that our judiciary has played a substantial role in this shift by modestly stepping to the side when asked to intercede on behalf of the structural constitutional rights of citizens who challenge administrative control over their lives and businesses.
Moreover, an underreported aspect of the nomination of Justice Neil Gorsuch to the United States Supreme Court has been his quiet (and sometimes not so quiet) efforts to shift the tides on these movements. His critiques of the Chevron doctrine, which requires deference to agency interpretations of vague and unspecified laws passed by Congress, and his decision to invoke the nondelegation doctrine to strike down a sex offender registry law that gave the United States Department of Justice unrestricted power to define who must register, are examples of these rulings.
In each case, Justice Gorsuch invoked ancient articulations of constitutional principle connected to our separation of powers.
In one case, Gorsuch was forced to distinguish a unanimous decision of the United States Supreme Court granting the United States Department of Justice unchecked power to define what constituted an illegal controlled substance under federal law through processes developed by the executive branch that are not subject to congressional review or approval. Think about it: Prosecutors were writing the law they were executing and the judicial branch gave that process its unanimous approval. Montesquieu would not approve.
Chief Justice Roberts joined this effort in his own somewhat quiet way in 2015, when he refused to grant any deference to the Internal Revenue Service’s interpretation of the Affordable Care Act, even though he had previously upheld the ACA under Congress’s taxing powers. In the follow-on statutory interpretation case, Roberts would not acknowledge the IRS’s policy authority in the area of the health insurance markets and grant that agency’s interpretation Chevron deference.
This blow to the scope of IRS authority may have powerful echoes, when future litigants challenge the IRS’s interpretations in other areas where tax law is used as a policy tool, such as in regard to child care and child care credits, or clean energy and renewable energy credits, to say nothing of national housing policy, where tax credits play a substantial role.
Perhaps those of us who call ourselves “liberals” or “progressives,” even as we decry or protest other aspects of the “conservative” jurisprudence of Federalist Society jurists and scholars, will come to thank conservative legal thinkers for reasserting the preeminence of the formal governmental protections of our liberties.
In any case, as you listen to the radio or watch TV this week, and as you hear stories about the constitutional revolution in Turkey, know that we are not immune from criticism ourselves when it comes to protecting our separation of powers.
(Michael S. Lewis is a Concord attorney.)