Letter to the Editor

The need for a balance (and eternal challenge) of powers

Friday, June 21, 2019
Charlyne Behrens | Civic Nebraska Writers Group

Benevolent despotism. These days, when Congress is firmly divided by ideology and even our beloved nonpartisan unicameral has some trouble doing its chores, one can understand the appeal.

I mean, leaving decisions to one person is so much more efficient: “I speak, and it is done.” How tempting, especially compared to the near gridlock of our democratic system and its vaunted checks and balances!

You know: three branches of government, each designed to limit the power of the others. Despite the hot summer during which they hashed out this system, the result must have seemed really cool to those at the Constitutional Convention in 1787.

What inspired them? Well, they were Englishmen, and they knew their history and experience. Many were informal scholars, and they knew their philosophers, ancient and contemporary. They concluded that, in general, no one person – and no one group of persons – should be allowed to have an over-balance of power.

For centuries, before nation-states formed and then for many years after, a monarch of some kind held all power. “Rule of law” meant “whatever the king wants in this case.” It was hard for the average person to keep up. Heck, it was hard for the king’s advisers and colleagues to keep up.

The gentlemen forming a nation out of 13 disparate colonies wanted to avoid that mess. They wanted a rule of law, but what should that look like? Who would make the law? Who would say it was OK? Who would interpret it?

Following John Locke and other philosophers, they settled on a government with three parts. The most important, they believed, was the legislature because it would directly represent the people. The founders wanted the people to make the laws via their elected representatives.

But it seemed obvious that, for the sake of minimal efficiency, someone would administer those laws. So the convention created the executive. They had in mind an officer who would have limited say in what the law should be and who would focus on making the laws work.

The courts would be the third branch so that those who made and administered the laws would not decide when their pet regulations and policies had been breached (the idea that the courts would measure challenged laws against the Constitution came close to 20 years later).

Sounds good, yes? In general, it has proven its worth for more than two centuries. In general, it is worth preserving.

Of course, it’s often hard to balance the “balances” among the branches, especially as the pace of events accelerates. It may seem expedient, even essential, to move quickly. The executive can do that most easily. Recent presidents have relied more on executive orders to keep things moving, especially when Congress is choking on partisanship. Although orders are not laws and can be overturned by the next president, they are a way for a president to get his way right now.

Presidents can also influence the courts by virtue of which judges they appoint – not just to Supreme Court vacancies, which don’t happen often, but to federal courts. There are 870 of those, although not all judgeships are open at the same time. But presidents will appoint judges whose ideology reflects their own. If judges are qualified at some fundamental level, they are likely to be approved by Congress – in between choking fits – and make rulings that make the president happy.

So, it’s easy for things to get out of whack and become unbalanced. When any of the three branches – and it’s most likely to be the one-person executive – seems poised to subvert the system to become despotic, it behooves us to put up a fuss. The sky may not be falling, but even cracks in the ozone are reason enough to demand a rebalance.

Keep an eye on the sky!

— Charlyne Berens is a retired associate dean of Nebraska U.’s College of Journalism and Mass Communications. She was editor and co-publisher of the Seward County Independent, and has published two books about the Nebraska Legislature and a biography of former U.S. Sen. Chuck Hagel. For more Civic Nebraska Writers Group columns, go to CivicNebraska.org.

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