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Democratic Victory: 'A New Direction' on Checks and Balances?

JURIST Contributing Editor Peter Shane of Moritz College of Law, Ohio State University, says that Democrats taking over Congress in the wake of the mid-term elections should begin by reasserting constitutional checks and balances in a wide range of critical policy areas...



With only their control of the Senate in doubt, Congressional Democrats are presumably deciding how best to fulfill their campaign promise to take the country in "a new direction." A good place to start would be a new direction in the operation of government checks and balances.

Democrats have promised to open the next session of Congress with half a dozen bills, each reflecting the sentiments of an overwhelming majority of Americans, on subjects from the minimum wage and prescription drugs to stem cell research and tax deductions for college tuition.

The importance of these bills should not be underestimated. The President may decide to go along on some of them and, if not, Democrats will have dramatized for 2008 what the difference would be between Democratic and Republican control of the White House. (And, by the way, 21 GOP Senate seats will be stake in 2008, as opposed to 12 Democrats, and at least nine of the 12 Democrats will be lopsided winners no matter who runs against them.)

But the fact remains, for every Democratic attempt to set serious new national policy on the economy, the environment, education, health care, foreign affairs or national security, they face a President at the other end of Pennsylvania Avenue, sitting at his desk with a veto pen and no prospect of his own reelection to consider. This political contexts only heightens the importance of a concerted effort to return checks and balances to a healthy equilibrium.

Speaker-Apparent Nancy Pelosi has foresworn presidential impeachment, and this is a sensible starting point. For political intents and purposes, the Bush Administration already stands impeached, and nothing we know about President Bush today could possibly elicit 67 Senate votes for conviction, no matter how egregiously he has ignored the Constitution.

But Democrats in Congress can begin to whittle away at the Bush Administration's arrogant defiance of oversight and its preposterous claims of unilateral executive power. Here are my recommended top starting points:
  1. Comprehensive hearings before at least the House Judiciary Committee on claims of executive power under the Bush Administration, ranging from claims of unbounded inherent power over national security to the authority to tell every member of the Executive branch how to do his or her job;

  2. Comprehensive oversight hearings regarding the Department of Homeland Security, including FEMA and the TSA;

  3. Oversight hearings into the NSA program of warrantless electronic surveillance;

  4. Hearings on the manipulation of intelligence before Iraq;

  5. Hearings on missing funds and the use of no-bid contracts in Iraq; and

  6. Hearings on oil industry pricing practices since 2001, including a new demand for records regarding the Vice President's National Task Force on Energy Policy - to be followed up, if necessary, in court.
Congress should insert into the next Defense Department appropriations bill a ban on using any appropriated funds for military action against Iran, unless Congress provides express statutory authorization, or unless Iran attacks the United States or its allies.

And, finally, Congress should declare, whether by statute or concurrent resolution, that it is the sense of Congress that no state of emergency or crisis in public safety currently justifies the suspension of habeas corpus - thus rendering unconstitutional and nullifying the suspension of habeas corpus in the Military Commissions Act.

Democrats will face the dilemma of how to treat the minority party in the House and perhaps the Senate. Given the Republicans' contemptuous and heavy-handed exclusion of the Democrats from policy making since 1995, the Democrats could be excused some temptation for payback. But they should resist.

Some Democrats will insist that treating Republicans at all respectfully will just prove to the world the inherent weakness of the liberal Democratic spine. It's not true. Democrats should insist that part of a reinvigorated checks and balances is again taking seriously the institutional role of the legislative branch as something more than an enabler of executive power. In defending congressional prerogative, the Democrats need to get GOP lawmakers to act like lawmakers, not just GOP apparatchiks.

It may be that the Democrats can even strike an informal deal with the Republicans. If the GOP controls the Senate, the bargain is easy - House reform in exchange for Senate reform. But, even if Democrats control both Houses, they can say to their GOP colleagues: Go along with us in rebuffing executive privilege claims, at least in domestic affairs, and cross party lines in writing at least portions of a House Judiciary Committee report on separation of powers issues, and we'll treat you like partners.

You don't need a crystal ball to know that a return to real public policy making in a robust constitutional framework is what the American people want. A wonderful opportunity looms, politically speaking, to do well by doing good.


Peter M. Shane is the Joseph S. Platt - Porter, Wright, Morris & Arthur Professor of Law at Ohio State's Moritz College of Law.


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Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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