Fred Barbash has an interesting article, Why would Congress surrender , where he argues silence also passes for action. He writes that Congress has been so timid in asserting its power as a branch that it is breaking the underlying assumption of the doctrine of separation of powers.

Barbash comments that because the judicial so rarely gets involved in separation of powers arguments between the Legislative and Executive, that the two bodies basically have to negotiate it the issues out. So rather than being constitutionally explicit in solution, they tend to be political negotiations.

When one branch drops out by failing to respond, the other branch effectively sets the precedent, which is passed along to the next generation and the generation after that.

Inaction, indeed, strengthens that precedent. Over time, inaction is taken as acquiescence, a form of approval, and the precedent becomes entrenched until it's as good as law.

This is precisely what has occurred over the years. Successive decades of congressional acquiescence in the face of executive claims of war power have allowed the law to be settled exclusively by the executive branch.

Because Congress has been fearful of asserting themselves politically against the Executive it has broken a fundamental relationship and basis for separation of powers and the equilibrium it is supposed to enable between the three separate but equal branches of government:

The equilibrium of government, in the view of the Constitution's Framers, rested on a stated assumption that each branch would fight fiercely to expand its authority but just as fiercely resist encroachment from another branch.

That Congress would refuse to fight seemed unimaginable.

Interesting. The Australian Senate, which is the closest thing the Australian national government has to a separate legislative, has not been explicit in resisting executive dominance. Courtesy of Senators being in the Executive Cabinet, separation of powers is largely broken anyway. Executive discipline as government extends into the two legislative houses.

Cam Riley: South Sea Republic. Freedom, liberty, equity and an Australian Republic.

Comments
  • adam . # .
    I suspect: That as Bronwen Maddox has written in the Times, Democrats in Congress are actually biding their time in order to give their candidate the best shot at the Presidency.

    That does also the importance of parties as an institution separate to the relative strengths of the Executive and Judicial branches, I guess.
  • cam . # .
    Yes, I think the biggest pressure: on constitutionalism and conscience is the party political machine.

    It is interesting to see the Australian Democrats who are unique in having a party platform that is dedicated to constitutionalism (and its improvement) as well as a party constitution that places the conscience above the national executive. Labor has its pledge, and the Liberals, as a majority party, have executive and cabinet discipline which quashes the conscience. Turnball is having a few issues in this area.

    Because of the structure of the Australian Democrats, and the reality that they will not be a majority party and have to worry about executive discipline in parliament, the Democrat\'s Senators all have distinct legislative personalities. Liberal and Labor Senators tend to have media personalities rather than legislative ones.

    I guess majority parties are mainly marketing and PR operations. The Greens don\'t fit easily into the little description I have made. Their narrative is different again.

    cam
  • adam . # .
    Parties: ... are one of those machines for gaming the political system, as distinct from the polity as a whole. That\'s the risk, that the political system becomes divoces from the underlying reality, or polity. I think this is what would happen in powerful feudal courts and is why concubines, eunuchs and Senators rarely make good executives.