Myth One: “Co-Equal”

Adam Schiff, the chairman of the House Intelligence Committee, who has been overseeing the impeachment hearings, is badly misrepresenting the Constitution when he says that the Congress is a co-equal branch of government with the presidency. It is not. It is by far the superior branch. James Madison made that clear for all time with his lapidary sentence in Federalist No. 51: “In republican government, the legislative authority necessarily predominates.” Necessarily. Discussion over. Final as that statement is, Madison backed it up with what he assumed elsewhere. For instance, he said that Congress had the power to take any land where it meant to locate the federal government (this was then not yet decided) “by virtue of its general supremacy” (Federalist No. 43).

All the highest powers of our constitutional system are vested in the Congress: the power to make war, to make laws, to ratify treaties, to raise money. It establishes and funds the executive agencies. It establishes the site and size of the federal courts (including the number of justices on the Supreme Court, which it has changed several times). It even has the power to approve the proper government of the states, according to Article IV, Section 4: “The United States shall guarantee to every State in this Union a Republican Form of Government.” It makes no sense to have a republican federal government made up of non-republican states. Congress therefore can act “against aristocratic or monarchial innovations” in the states (Madison, Federalist No. 43).

But the crusher is this. Congress can, by impeachment and conviction, simply remove members of the other two branches, including its highest members (the president, the chief justice). Neither of those other two can do the same to Congress. Among the many things that show President Trump knows nothing about the Constitution was his October 6, 2019 tweet that said Adam Schiff and Nancy Pelosi should be “immediately Impeached.” Congress impeaches. Its members cannot be impeached.

What has led to the common notion that the branches are “co-equal” (an odd term, that; like “more unique”)? There have been a series of encroachments by the other two, especially by presidential power. Congress, which has the sole right to declare war, has not done so since 1941. It has allowed extension of the title of “commander in chief” outside its solely military scope. Article II says, “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the service of the United States” (emphases added). He is not “our commander in chief.” He is not even commander in chief of the National Guard, except if and when it is called out of its proper sphere in the states (that is, federalized). And as for control of the army and navy, that depends on the antecedent, Article I power of Congress “to raise and support armies… to provide and maintain a navy.”

Encroachment by the Supreme Court is seen in the claim that declaring a law unconstitutional means that the judicial branch, because it gets “the last say,” is superior to the legislative. But as Alexander Hamilton explained in Federalist No. 78, the court is just saying that the prime legislative act, the Constitution, is superior to a derivative one, a statute. And if the Congress wants the “last say,” it has various means of exercising it. It can, with state help, amend the part of the Constitution cited by the court. It can impeach the justices who ruled. It can change the number of justices.

Myth Two: “Checks and Balances”

The idea of co-equal branches is supported by another myth: that the genius of the Constitution is a system of “checks and balances” between the three branches of government. The joint term is used only once in The Federalist, by Hamilton in No. 9, which praises “the introduction of legislative balances and checks” (emphasis added). He was not talking about the three branches, but about the checking and balancing between the Senate and the House within the legislative branch.

That is regularly the way Madison also used the term “check.” He envisioned Congress as so powerful that it could not be checked by the other branches: “The remedy for this inconvenience is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit” (Federalist No. 51). By “different modes of election,” he meant the arrangement that pertained before 1912 (when the Seventeenth Amendment passed; ratified in 1913) by which the state legislatures elected senators to Congress. By “different principles of action,” he meant that the Senate was to have power of the sword (declaring war, ratifying treaties) and the House was to have power of the purse.

Hamilton said the different principles came from the “aristocratic” aspect of the Senate. while the House should be “generally the favorite of the people” (Federalist No. 66). The same principle divided the House’s power to impeach from the Senate’s power to convict, making this the only check on its own predominance over the other two branches of government. As Hamilton put it in the same paper: “The same house [of representatives] will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them?” (emphasis added).

Madison thought the presidency would be so weak that he advocated giving it a veto on legislation. That made sense. The executive should have the right to protest if it is given laws too difficult to execute, or contradictory, or insufficiently funded. But when Congress has had time to consider the objections, it can overrule the veto, by a two-thirds majority (ensuring that it has done its work of deliberation). Again, if it comes to a last word, Congress has it.

I must admit that the present Congress, in which the Senate blocks laws passed by the House, looks as though it is exercising the check Madison wanted within the legislative power. But that is only a nightmare version of Madison’s argument. He wanted the Congress to have a principle of hesitation to keep it from overpowering the president, weak by design. Now, because of the encroaching executive power, the Senate majority leader, Mitch McConnell, is surrendering to and serving the president. This upsets Madison’s system entirely, allowing the weaker branch to stymie the opposition of the stronger. McConnell backs up the president’s weird claim that Article II gives him the power to do anything he wants; this can be so only if the Senate abrogates its own, vastly superior powers under Article I.

Myth Three: Deliberate Ineptitude?

It is often said that the co-equal branches, like checks and balances, were meant to hamper government, fostering inefficiency because the framers feared the power of government. But the Constitutional Convention was called because the Articles of Confederation were a masterpiece of inefficiency. The first attempt at a national government had failed, and the writers of the Constitution meant to make the country work finally. The division of powers was not meant to cripple government; it adopted Adam Smith’s argument that division of labor is the way to improve performance. Smith’s The Wealth of Nations came out just twelve years before The Federalist, in which, in No. 9, Hamilton wrote:

The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times [emphasis added].

No longer would people have to ask who was in charge of what, as under the Articles. It would have been true that the new government stumbled if the branches were truly “co-equal,” none being able to put it back in motion. But Madison said that could not happen, since “it is not possible to give to each department an equal power of self-defense” (Federalist No. 51).

The quest for efficiency was seen especially in the establishment of the presidency. Since the colonies had overthrown a monarchy and feared one-man rule, the state constitutions tried forms of a plural executive—citing precedents such as the Romans’ two annual consuls or the decemvirate (a ten-man commission). Some (like New York) wanted a president to rule only by cooperating with an executive council. These proposals were too diffuse to function. But what if efficiency was purchased at the price of giving the president a power able to be, as Madison put it in No. 51, “perfidiously abused?” The founders did not fear government in general. They feared the presidency.

James Wilson of Pennsylvania found the way to allay that fear. He said that concentrating the presidency in a single person, as opposed to a plural construct, would make it more accountable. How could you impeach an executive council, which might have been internally divided, its members trying to shift the burden of guilt back and forth among themselves? If the president abused his power, Congress would know whom to blame, and the impeachment power was created to end the abuse. The Federalist Society claims that the unitary presidency exalts the executive. Wilson said the unitary presidency was created to make it vulnerable.

Wilson’s argument won the day, as Hamilton made clear in Federalist No. 70, where he says that a “multiplication of the Executive… tends to conceal faults and destroy responsibility,” making difficult “a strict scrutiny into the secret springs of the transaction.” That is why “the executive power is more easily confined when it is ONE.” That is also why impeachment is imperative in a republican form of government “where every magistrate ought to be personally responsible for his behavior in office.” Hamilton is clear that impeachment is meant to stop any “abuse of power” by “pernicious measures.” If actual crime is an issue, that can be punished by the courts after Congress has stopped the abuse by removing the offender (the first necessary task). The removed person will then be “obnoxious [exposed] to legal punishment.”