Like “Separate But Equal”

The first two centuries of this Republic, Congress considered themselves a separate, co-equal branch of government. They apparently view things differently now. We had a good run. https://t.co/fOvmUfB4bq

— Ron Filipkowski (@RonFilipkowski) December 20, 2024

The problem started with the idea of “co-equal.” Like “separate but equal,” it sounds good until…well, until you think about it.

Messy and frustrating as it is, Congress is established in Art. I, and given primary governmental power: make laws, raise taxes; allocate funds; declare war; impeach the executive and judges. Its power is primarily constrained by the Constitution (“Congress shall make no law…”).  Art. II establishes the executive, separately elected but answering to Congress (state of the union; impeachment), and only with power over Congress to veto laws; which Congress can override. Congress starts constitutional amendments; the President has no role there. The President must allocate funds as Congress directs. The President can negotiate treaties; but they must be ratified by the Senate. The Presidential election is even verified by Congress. And the President cannot appoint important government officials (like Constitutional offices and judges) without the advice and consent of the Senate. And Congress can remove such officials from office without the consent of the President.

Art. III establishes the Supreme Court by title, but leaves everything about the Court to Congress. Composition, number of members, jurisdiction; even who is Chief Justice, must go through Congress. All of the judiciary is established by Congress and given jurisdiction by Congress.

“Co-equal” is really a gross overstatement of the structure. “Checks and balances” is more accurate, but the real authority there is in the hands of the voters who re-elect the House every two years. And the President’s ability to check the Congress is much less than Congress’s authority over the administration. The Supreme Court has the least authority of all, and arguably has arrogated the most power to itself, especially in refusing to abide by a code of judicial ethics applicable to every other court in the land. A refusal they base on being “co-equal” to Congress, because Congress gets to set its own rules. Except that power is explicitly granted to Congress by Art. I; and implicitly left to Congress to establish for the courts, by Art. III.

Justice Thomas hit with new allegations of undisclosed jet and yacht trips: report https://t.co/clpz1r56Dh

— Raw Story (@RawStory) December 21, 2024

And it’s high time they did.

“Co-equal” sounds fair and balanced and even judicious; but it isn’t. “Co-equal” means the Supreme Court can declare “for good behavior” to mean a lifetime appointment unless impeached. “Co-equal” means the President should get the appointments he wants, or at least the ones behind the “heat shield.” “Co-equal” actually means the “checks and balances” of the Constitutional arrangement are bypassed. It may be messy, frustrating, and even dangerous to leave so much power in the hands of Congress, but it is power left in the hands of a few that is the problem. Power in Congress is so diffuse it can seldom be wielded by any small group for long, even in opposition. But power in the majority of unelected members of the Supreme Court? Or in the hands of the one President we have at a time? I’m more comfortable with Congress having the whip hand.