The New Separation of Powers

The New Separation of Powers

The dysfunction in today’s political system would be painful for our Founders.  Under our Constitution, Article I governs the legislative branch, which is charged with passing the laws and ensuring that the executive branch (set up under Article II) follows the rule of law and respects our Constitution.

Over the course of our nation’s history, our practice has largely followed the model our Founders had in mind.  In the 1990s, for example, Congressional leaders like Colorado’s David Skaggs stood up to a President of his own party to defend our Constitution and the rule of law.  Today, as President Trump undermines the Affordable Care Act and threatens to leave many Coloradans without health care insurance, it’s a different story.  As one commentator explained, as long as the Affordable Care Act is the law of the land, President Trump does “not have the right to undermine it through the use of executive power.”  Unfortunately, Congress is unable or unwilling to do its job in today’s polarized and dysfunctional environment to ensure that the President follows the Constitution’s requirement that the laws be faithfully executed.  Thankfully, State Attorney Generals are stepping up to defend our Constitution and the rule of law.

I am running to be Colorado’s next Attorney General because our constitutional freedoms and our nation’s commitment to the rule of law requires active citizens and responsible leaders.  Our current Attorney General has remained on the sidelines or has cheered on repeated challenges to our Constitution and the rule of law.  Notably, while other State Attorneys General have stepped up to challenge the unconstitutional travel ban, the ending of the DACA program, and the undermining of the Affordable Care Act, Colorado’s State AG has refused to act.  In some of these cases, she has forced our Governor to hire private counsel to represent our State.  And instead of working collaboratively in Colorado to solve problems and address challenges, such as managing oil and gas development responsibly, she has played political games, like suing Boulder County when it was working on an ordinance on this issue.  We deserve better.

The Constitutional Plan and Today’s Reality          

Under our Constitution, the founders expected Congress to exercise oversight of the executive and to check executive branch overreach.  In Federalist 51, James Madison praised the Constitution for creating a system that gave to “those who administer each department, the constitutional means, and personal motives, to resist encroachments of the others.”  As one commenter explained, “a system of checks and balance between the legislative and executive branches would use each branch’s “ambition” to check the ambition of the other.”  Or, as Madison famously put it, “ambition must be made to counteract ambition.”

The Madisonian innovation of separation of powers has served our nation very well.  At important times during our nation’s history—the Vietnam War and Watergate, for example—Congress has stepped up to oversee illegal actions by the executive branch.  Today, however, the level of polarization and party discipline in Congress (and fear of primaries) has led to an environment where Presidential action remains unchecked.  In the absence of Congress doing its oversight job and functioning properly, the executive branch has a greater ability to exercise its discretion on how to implement and, in President Trump’s case, whether to implement the law.

Federalism and the New Separation of Powers

In today’s environment, where Congress is refusing or is unable to act to ensure that the President “faithfully executes” the laws, State Attorneys General are playing an increasingly important role.   In the mid-2000s, when the Bush Administration refused to recognize that greenhouse gases were threatening our environment, a number of State Attorneys General stepped forward to challenge the Administration’s failure to follow the Clean Air Act.  In the landmark Massachusetts v. EPA decision, the Supreme Court recognized the role of State AGs in overseeing executive branch inaction and called on the EPA to begin regulating greenhouse gases.  Based on this precedent, State AGs now regularly oversee and take action to enforce the executive branch’s obligation to faithfully execute the laws.

I am running to be our next Attorney General here in Colorado because our freedoms and Colorado way of life depend on a willingness to stand up to the federal government.  As David Skaggs explained in endorsing my candidacy, the threats we face from the federal government, including expanded use of civil forfeiture without following due process, must be addressed by our State Attorney General.  With Congress unable to work effectively and to oversee the executive branch, our state governments play an increasingly significant role and our State Attorneys General are a principal line of defense.

In Colorado, we pride ourselves on collaborative and innovative problem solving.  On a range of issues where our federal government’s dysfunction is undermining progress, such as providing affordable and quality health care, addressing the opioid epidemic, protecting our land, air, and water and fighting climate change, and treating immigrants fairly, our state government is a model for the nation.  Unfortunately, our Attorney General here in Colorado is not working with our state leaders on these issues and is not standing up to the failings of Washington.  In 2018, we can address this by electing a new State Attorney General who stands up for us and works with leaders in our State to make progress in important areas.  Please join my campaign to help me do just that.

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