Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.
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.
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.
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.
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 firstname.lastname@example.org
To contact the editor responsible for this story: Jessie Kokrda Kamens at email@example.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)