Politics

How the Washington Swamp Has Subverted Separation of Powers

Sen. Ben Sasse of Nebraska detailed how the administrative state has undermined the three branches of government

Image Credit: Alex Edelman/Getty Images

Congress has repeatedly transferred its constitutional authority to make the law to unelected, unaccountable executive branch bureaucrats, and in the process encouraged politicization of the Supreme Court, according to Sen. Ben Sasse (R-Neb.).

“In our system, the legislative branch is supposed to be the center of our politics,” Sasse said during his opening comments in the Senate Judiciary Committee’s confirmation hearing for Judge Brett Kavanaugh to the Supreme Court.

“It’s not. Why not? Because for the last century, and increasing by the decade now, more and more legislative authority has been delegated to the executive branch every year; both parties do it,” he continued.

The result, Sasse said, is that “this transfer of power means people yearn for a place where politics can actually be done. And when we don’t do a lot of big, actual political debating here, we transfer it to the Supreme Court. And that’s why the Supreme Court is increasingly a substitute political battleground in America. It is not healthy, but it’s something that happens.”

Related: Dems Try to Derail Kavanaugh Hearing Before It Begins

Sasse said too many lawmakers are more concerned with keeping their jobs than actually legislating. Because of this, they have steadily punted more responsibilities to the executive branch. They write laws that give federal bureaucrats power to enact and enforce regulations that replace law debated and approved by elected representatives.

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Kavanaugh has been facing heat because he could tilt the court toward a more solid conservative majority. He approaches cases based on what he refers to as the “major rules doctrine.”

He explained in his dissent for the 2017 case United States Telecom Association v. Federal Communications Commission that Congress must clearly express if it wishes to assign an agency authority of vast economic and political significance.

Kavanaugh has resisted the expansion of administrative agency power when ruling on past cases, particularly in regard to the Environmental Protection Agency. He has opposed judicial activism and is generally viewed as an originalist.

Kavanaugh began his legal career working as a clerk for Circuit Court Judge Walter Stapleton after graduating from Yale Law School in 1990. He later had the chance to clerk for Justice Kennedy for one term in 1993.

“The Supreme Court is increasingly a substitute political battleground in America. It is not healthy, but it’s something that happens.”

He also worked as an associate counsel for independent counsel Kenneth Starr during his investigation into then-President Bill Clinton, which led to his impeachment by the House of Representatives in 1998.

Republicans hold a narrow 51-49 majority in the Senate, but 10 Democrat incumbents are seeking re-election in red states Trump carried handily in 2016. A Quinnipiac University Poll found that 44 percent of voters support Kavanaugh’s nomination, while 39 percent oppose him. The survey was conducted from August 9 to 13.

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