Deep Thought for the day: The three branches of government are not "co-equal"

[Kurt_and_Hunter]

The Constitution doesn't say the branches are equal, and the framers certainly didn't think they were equal. That's a weird civics myth, passed from generation to generation. (Part of our weird habit of selectively elevating dicta, like passages from the Federalist Papers or from Thomas Jefferson's correspondence, to quasi-constitutional status.)

Congress is the supreme branch of government. Its powers are checked and balanced, but when push comes to shove the Constitution gives congress all the cards.

Congress has the power to remove judges from the bench and remove the President from office. In fact, Congress can install any member of the House as President through a few simple votes... they could do it over a long weekend if they wanted to. (Just make congressman X speaker, then remove the President and Vice President.)

Congress controls the methods by which judges and Presidents are chosen. Congress has the sole power to approve Electoral College electors and ratify an Electoral College vote. Congress must approve federal judicial appointments.

On the other hand, judges and presidents do not have the power to remove congressmen, nor do they have any say in who gets to be in congress. (Constitutionally, Congress is the sole judge of its own membership.)

[Clintonista2]

1. Wow, I've never thought about it that way.

Kind of scary when you think about it.

[Kurt_and_Hunter]

2. In practice, Congress is often weak because it is divided

But a hypothetical Congressional super-majority could do almost anything.

And I didn't even get to the sole taxing and appropriation powers of the House...

And the commander-in-chief role means little when congress controls funding and has the sole power to declare war.

(Again, in practice, not so much. But there is no doubt where ultimate power was meant to lie.)

[DangerDave921]

3. Yeah, but . . .

Who gets to decide what is, or is not, constitutional? Any law passed by congress has to get past the annointed 9. And who is going to enforce the law passed by congress without the power of the executive?


I think the beauty of the framers was to envision a government where there was truly no one branch in charge. The constant push and pull is fascinating.

I would argue that the SCOTUS has actually become the more powerful one lately. But only because congress has ceded some of their power to the courts (and the executive).

Good discussion!

[Kurt_and_Hunter]

5. I agree that Congress is not all-powerful

But they are granted the tools to win any fight if Congress were united in the effort. Because the House is chosen every two years they are the most responsive to the people, and have the power to stamp out any tyrant that might arise.

Even Marbury v. Madison is weak stuff when you consider that Congress could bounce all nine members of the Supreme Court is Congress didn't like a Constitutional interpretation. Then the Senate gets to block any replacement justices they don't like.

If the President keeps sending up new Justices they don't like, Congress can replace the President with a congressman of their choosing who will send nominations of justices they like.

And if Congress doesn't like how the Executive is enforcing the laws, they can elevate one of their own to President.

The framers recognized that Congress is bound to be divided internally, so such extreme power is safely held by Congress... the only time Congress could get its act together to take over the government entirely would be in a clear emergency.

(If a lunatic president started bombing Canada Congress could remove him from office pretty fast, even if the cabinet declined to do so.)

[harun]

4. Cool post, thanks

Go to show that if the Congress wants to play hard ball, they can. Right now they want to play a bit of different game.

[Kurt_and_Hunter]

6. The institution of Congress is very powerful, but only to the degree the members are unified

As we see time and again, simple majorities are insufficient to exert real power, and that's as intended.

But if the whole country were so unified it gave one party 90% control of Congress, nothing could stand in its way.

Essentially, the Constitution says that 2/3 of congress is almost all powerful, but 50%+1 is tightly checked.

It's a clever system.

[Kurt_and_Hunter]

13. PS I oppose almost all concentrations of power. I don't ever want to

see a congress so unified that it could ride roughshod over the other branches. But the latent power is there.

[PoiBoy]

7. That's why Congresscritters are called "Representatives"...

..they are there to "Represent" the will of the People... in whom the ultimate power is supposed to lie...

good post K&H...

[AX10]

8. At the end of the day, the Congress has more power..

than the other two branches. That is the way it should be.

[Recursion]

9. The views of the framers were mixed...

...the Constitution is a "living document" because they had to leave enough wiggle room in it to keep one half of the delegation or another from walking out.

Jefferson and the Democrats (then called Republicans) saw the legislature as supreme and the House as the higher chamber.
Hamilton and the Federalists saw the executive as supreme
Jay saw the Judiciary as supreme
The soon-nascent Whigs saw the legislature as supreme and the Senate as the higher chamber

There's not one answer to this.

[Kurt_and_Hunter]

10. Valid points all

But despite the varied and competing interests of the framers, the bottom line of the document we ended up with is that only congress has any explicit power to depose members of the other two branches, and though seldom used, that is a tremendous latent power.

A sufficiently dominant party in Congress could impeach the president and vice president, installing the Speaker, then impeach every member of the supreme court and have the speaker (now president) send a whole new nine hand-picked to overturn Marbury v. Madison. Presto... no meaningful judicial review.

And the President can be meaningfully said to serve at Congress' pleasure, since Congress is the arbiter of their own impeachment powers. (For that matter, Congress can simply refuse to ratify a presidential election, or, more pointedly, simply ratify a completely different result.)

The other two branches lack that theoretical power to replace the whole government, so in that sense Congress should be considered supreme.

I'd agree that there is some use in thinking of them as co-equal, but in any real instiutional battle Congress has all the power. And that's without even getting into the question of funding.

(I don't expect Congress to ever do these things in practice, but if one branch ever wanted to remake the entire government, only Congress could.)

[Recursion]

14. Ah, but don't forget Andrew Jackson's point

Congress can pass whatever laws it wants, the Executive still must enforce them if they are to be meaningful (even impeachments). It was explicitly a design feature of the Constitution that Congress could not behave in a manner so odious to the other branches because it needs their comity and cooperation to actually do what they legislate.

[Kurt_and_Hunter]

15. Closely related to Stalin's "How many divisions does the Pope have?"

My musings are only about the implications of the array of powers enumerated in the constitution... what level of political violence could be done within the system.

I don't doubt that a Congress that asserted its full powers might encounter extra-constitutional obstacles! (This thread got me thinking about how Congress has seldom pushed the envelope. The Supreme Court essentially wrote itself a job description, and the Executive has been one long sequential power grab from Jackson to Bush2. But Congress has seldom even begun to flex its muscles, and folks don't seem to like it when they do. Andrew Johnson couldn't get convicted by a completely hostile Senate. Gerald Ford's suggestion that justice Douglas be impeached met with distaste. Gingrich's shutting down the government and impeaching the President was a PR disaster.)

Once we consider how things play out outside of the system it becomes a matter of the personal loyalties of soldiers, police and those who take to the streets. Had Jackson's underlings refused to follow orders in defiance of the SCOTUS (as they probably should have) the story would have been different.

But if the Constitution breaks down completely, my money's on the Executive, of course.

[Uncle Joe]

11. What this all boils to is that the people are supreme for so long as they are united.

The congress as the most direct representatives of the people reflect the American People's level of unity, when the people are divided, the congress will be as well. I believe this is a large part of the reason as to why those in power foster stereotypes in order to divide the people, thus dividing the congress. It's much easier then for the corporate media or mega wealthy to shape the government's policies to their own agenda, when they only need to sway a few people. Divide and conquer is still a powerful maxim to obtain and maintain power, and thus absolute power corrupts.

Kicked and recommended.

Thanks for the thread Kurt_and_Hunter.

[Think82]

12. I love that us Biden supporters are such deep thinkers! I enjoyed your post.