America is more than $15 trillion in debt, government is wildly out of control, and establishment Republicans are still afraid to break a few political eggs.
Former House Speaker Newt Gingrich, a schizophrenic cross between conservative populist and big-government insider, proposed that Congress call some judges to testify about judicial opinions they’ve written.
That’s an egg-breaking idea. It met with gasps of horror from the establishment left, who love their activist judges. It didn’t exactly go over well with the establishment right.
Contrary to the hype, the process would begin with polite invitations from Congress to judges. What judge confident in the correctness of his or her decisions would decline such an invitation?
Wouldn’t Justice Sam Alito want the chance to do more than mouth, “Not true!” at a State of the Union address when a judicial opinion he signed onto is misrepresented in an official setting?
Congress may constitutionally subpoena judges for legislative purposes even under the very opinions of the judiciary itself conceding broad subpoena powers to Congress.
Some establishment Republicans claim this proposal would violate separation-of-powers principles. In fact, having judges testify before Congress is entirely consistent with the separation of powers if you believe the separation of powers means that Congress legislates, the president executes, and the judiciary adjudicates.
But that’s part of the problem with many establishment Republicans. If subpoenaing judges seems too confrontational for them, then they hardly have the stomach or the genius needed to tame big government that is $15 trillion in debt.
James Madison’s Federalist Papers 47 and 48 describe how the three branches are “separate” in their respective powers, but have certain controls – checks and balances, as we call them – on each other that are essential to preserving liberty.
Our constitutional republic was created with friction built into government. It’s the best system of government ever devised because it’s a holistic mix of separation of powers, checks and balances, and federalism.
Progressives built big government by eroding that system. Establishment Republicans have, for the most part, surrendered to the progressive system of government.
Yes, the separation of powers has broken down, but not for the reasons why people decry Gingrich’s proposal for Congress to call judges to testify. The problem is a lack of friction between the branches of government.
Activist judges no longer merely adjudicate; they legislate from the bench. Congress has delegated much of its exclusive lawmaking authority to the executive branch. The president issues executive orders effectively usurping congressional lawmaking power. President Obama even admits he “can’t wait” for Congress to act before he unlawfully makes law.
Separation of powers? Yeah, right. Judges, in turn, complete this circle by deferring to statist power grabs of the other two branches at the expense of individual and property rights.
The most egregious violations of the separation of powers come with federal administrative agencies. The list of federal agencies is staggering.
Administrative agencies such as the Environmental Protection Agency are governed generally by the Administrative Procedures Act (“APA”). Federal agencies have powers to execute and enforce laws, broad rulemaking authority which is legislative in nature, and the power to adjudicate controversies.
They also have broad, unilateral subpoena and other search powers that the courts have construed in ways that contort if not violate the Fourth Amendment’s probable cause requirement. Think IRS audits.
Through the APA, Congress created a system of federal administrative judges who are appointed for life by the agencies themselves. These administrative law judges do not go through the Senate confirmation process.
If you believe federal agencies appoint administrative law judges who will be hostile or even neutral to their agency agendas, email me about a bridge I think you’d like to buy.
Administrative agencies are prototypical violations of the separation of powers, judicial independence, and checks and balances. Oh, and ask a few states about how agencies such as the EPA are clueless about limits of power imposed by our federal system.
It’s difficult to understand how anyone can advocate for separation of powers and judicial independence, yet readily accept the nature of the administrative law adjudication system.
It seems equally difficult to grasp how establishment Republicans can claim they are for freedom, American exceptionalism and conservative, small-government principles when they don’t address the need to end and transition away from the statist, big-government that progressives created.
James Madison wrote in Federalist 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Establishment Republicans seem far too comfortable with the way things are. This is not advocating for Newt Gingrich. I’m just saying we need more egg-breakers in office if America is to right the ship of state.
Mark J. Fitzgibbons is co-author with Richard Viguerie of "The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society’s Biggest Lawbreaker."
