Constitutional separation of powers 'a real drag'

By Peter Wilson

Boston University law professor Jay Wexler reviews Supreme Power by Jeff Shesol in the Boston Sunday Globe. The book deals with FDR's scheme to pack the Supreme Court with additional justices favorable to his New Deal legislation. Wexler editorializes:

The framers of our Constitution created three branches of government to check and balance each other because they were terrified of concentrated power. Nothing risked tyranny more, figured these wise men, than the prospect of a single institution or person - say, a king - that could exercise unchecked authority.

Professor Wexler's sober Constitutionalism then jumps the tracks:

But as the events of the mid-1930s make clear, separation of powers is not always positive. In times of crisis, when quick and decisive action must be taken to preserve the nation's well-being, a government with many power centers can seem like a real drag.

J.R. Dunn's AT piece today, The Supreme Court and FDR's Power Grab describes in detail one of those "events of the mid-1930s"-the Schecter Poultry Corporation Supreme Court case against provisions of the National Industrial Recovery Act. This and two additional challenges to the New Deal in 1935 were decided against FDR by unanimous Supreme Court decision, with Justice Roberts describing the Railroad Retirement Act (technically not part of the New Deal but similar to the Social Security Act) "a naked appropriation of private property" and a violation of the Due Process Clause of the Fifth Amendment.

If one branch of government is in unanimous opposition, only a very arrogant President would continue to believe that "quick and decisive action must be taken." The President who truly believes that his usurping power is good for the country is more frightening than a corrupt one.

Does Wexler believe, after the naked admission of Rahm Emanuel that "you never want a serious crisis to go to waste," that our current President would never manufacture a crisis to increase his power?

When a true crisis arises, our government can act quickly and decisively. Pearl Harbor was a crisis. Federal regulation of poultry and health insurance are not.

Peter Wilson is a writer who blogs at walkingdogcapitalist.