CONSTITUTIONAL CONVERSATIONS
Are We in a Constitutional Crisis?
by
M.E. Boyd, Esq. “Miss Constitution”
We have been told by several elected officials and many more commentators and some journalists that we are in a Constitutional crisis pitting the powers of the national executive branch against the powers of the national legislative branch the resolution of which might lie with the national judicial branch.
Are we in a Constitutional crisis?
In my opinion we are not in a Constitutional crisis we are witnessing an emotional tantrum more understandable at the junior high level. Both genders of elected officials and others are caught up in something they are desperately hoping the public will see as serious but the public, for the most part, sees it for what it is – a very bad case of poor sportsmanship. It reminds me of the dramatic win by an American hockey team many decades ago against a team that could not possibly lose. In this case Hillary Clinton could not possibly lose the Presidency. She had been blessed by President Obama, a popular person, and her connections, money, strategy, possible historic significance, and opponent all made the election of 2016 inevitable. And just in case something happened, unelected officials in the state department, the intelligence services, the FBI, and the justice department had an “insurance” plan to remove Donald Trump should he win by claiming he had engaged in treason. The election would then have been invalidated by the Supreme Court and Hillary Clinton would have become President of the United States.
That all this failed does not mean we are in a Constitutional crisis it means we are just plain lucky. The issue being touted as a crisis involves the very interesting and difficult concept if separation of powers between the three co-equal branches of the national governing structure. Let’s take a look at this concept.
Our system creates a division of sovereignty between the national government and state governments that we call federalism. The states are to have plenary power regarding state citizens and those within their jurisdiction and the national government is to have limited and enumerated power regarding specific issues of national importance. On a national level, to further diffuse concentrated power, each function of the national government has separate and equal power over certain matters, shared power over certain matters, and oversight in certain matters. The whole thing can be somewhat of a blur and no function within these three branches is a definite bright line except, perhaps, judicial review of the Constitutionality of federal legislation. The Founders wanted it this way so that the system retains a good deal of flexibility with changing times and situations and the varying levels of competence within government itself. We call this concept “checks and balances” between the separate branches of the national government.
Congress, within our system, has enormous responsibility. It enacts legislation necessary to carry out its enumerated power. It determines the budgets of the executive and judicial branches. It confirms senior executive branch officers and Article III judges. It can impeach and remove from office members of the executive and judicial branches. It can override a Presidential veto. It can investigate the other branches and supervise what they do. In the four months that went into the creation of our Constitution the authors spent half of that time on Congress and its duties and powers.
The President, of course, is not only commander in chief, he or she is responsible for the direction of foreign policy and national security and can act quickly in times of emergency and chaos. The President has the singular ability to call on the American people for sacrifice and be a compelling voice and influence on the direction of the nation. The President owes respect and deference to the Congress and to the Judiciary and Congress owes respect and deference to the President. The whole thing is dynamic and in some ways inexplicable – just as the Founders intended. What underlies everything is the concept of acting in good faith and honoring the unwritten law we have discussed before with a courtesy and comity that provides lubrication for the three gigantic wheels of our national governmental system.
It is this good faith and comity that has been sacrificed by the tantrum we are now seeing. Appropriate oversight of the Presidency by Congress is necessary and proper; impeding his or her ability to perform the functions of the office is not. The President of the United States has an Article II duty to faithfully execute the laws passed by Congress and to protect and represent the American people within the bounds of the power of the office. He or she is the only person elected by a majority of the electors all across the nation and in respecting the office of the Presidency one is respecting the American people themselves.
A special prosecutor was appointed to conduct an investigation into the lawfulness of the Presidential election of 2016. The report has found that the election was lawful. Sportsmanship now comes into play. We call this the peaceful transition of power. It is conducted with grace and good will. A tantrum about losing is not the cause a Constitutional crisis but it may confirm to the public their decision about who the President should be. Preventing a legitimate officeholder from being able to perform the functions of his or her office is possible grounds for removal from office itself. We have had three Constitutional crises in our history: the 1800 election of Thomas Jefferson; the secession of states prior to the Civil War in 1860; and the resignation of Richard Nixon as President of the United States. Miss Constitution is confident that responsible behavior will prevail and that governmental functions on behalf of the citizens of the United States will commence.
Copyright©2019 M. E. Boyd, Esq., “Miss Constitution”
