Tougher Trump-Era Congress Heartens Conservatives

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By Kimberly Strawbridge Robinson

Nov. 22 — Strengthening separation of powers may gain bipartisan support as the political landscape shifts after Donald Trump’s presidential victory.

Separation of powers is the constitutional proposition that the three branches of government must fight for power, Rep. Ron DeSantis (R-Fla.) said Nov. 17. It’s the number one protector of our liberty, he said.

But Congressional neglect has caused an imbalance in that power, DeSantis said at the annual meeting of the conservative legal group, The Federalist Society.

Several conservative legal professors and scholars said prior to the presidential election that they thought now-President-elect Trump would exacerbate the imbalance of power.

We don’t trust Trump “to respect constitutional limits” in “his conduct in office,” they said in a 2016 statement by self-proclaimed “originalists against Trump.”

Therefore, establishing a more assertive Congress is important in light of Trump’s victory, John S. Baker Jr., a law professor at Georgetown University Law Center, Washington, who specializes in federalism and separation of powers, said.

That’s an idea that both liberals and conservatives might now agree on, DeSantis said.

Congress will “defend its turf,” he said.

‘Congressional Neglect.’

The Constitution’s structure envisions three strong branches of government, but the executive has amassed a majority of the power, DeSantis said.

Barack Obama is one of the most powerful presidents in history, and that’s mostly because of “Congressional neglect,” he said.

Instead of getting into the nitty-gritty of governing, Congress has mostly told agencies to sort it out, DeSantis said.

He pointed to the “contraceptive mandate” at the heart of the Supreme Court’s polarizing religious liberty decision in Burwell v. Hobby Lobby Stores, Inc., 82 U.S.L.W. 4636, 2014 BL 180313 (June 30, 2014).

There, Congress left it to the Department of Health and Human Services to determine which “preventive services” employers must provide in their health insurance plans. HHS required employers to provide contraceptive coverage, but some employers had religious objections to the requirement.

That requirement has proven contentious, and has sparked numerous court battles.

‘Last Line of Defense.’

State attorneys general have been providing the “last line of defense” in the separation of powers fight with the Obama administration, Alabama Attorney General Luther Strange III, said.

He pointed to high-profile Supreme Court fights over immigration, the Clean Power Plan and, most recently, transgender discrimination. Each of these legal challenges to aggressive agency action has been initiated by states, Strange said.

But Congress now needs to join the fight too, he said. Congress must reestablish its proper role in the balance of power, Strange said.

Worst Enemies

But DeSantis added that conservatives aren’t the only ones who might want to shore up Congressional power.

With the election of Trump, we will likely see more Democrats supporting this idea too, he said.

Neither liberals nor conservatives should be comfortable giving the president any more power than they’d be willing to give their worst enemy, DeSantis said.

Now is the time for Congress to take back some of that power, he said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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