Class! Class, listen up. Today we’re going to talk about American Justice in the 21st Century. Our lesson begins with a discussion about executive power.
Open up your book to page three and read after me: “The three main branches of the government are the Executive Branch, the Legislative Branch, and the Judicial Branch.” Simple, huh? Well, maybe in theory, but in actual practice, there are times when the Executive Branch sometimes takes over the function of one of the other branches, or even both.
Can we think of an example of when the Executive Branch has seized power from the Legislative Branch? No? How about a few years ago, when Congress passed a bill giving President Bush the authority to declare war on Iraq at any time, thereby giving up one of the main duties of Congress under the Constitution? Well, yeah, the Bush administration didn’t actually seize power from Congress; Congress gave it up willingly … after they’d had the bejeezus scared out of them with false information about Iraq’s weapons of mass destruction. That information was provided to Congress by the Bush administration, as a matter of fact. The act of “seizing power” can take all kinds of subtle forms, can’t it?
Now, let’s talk about ways that the Executive Branch might seize power from the Judicial Branch.
First of all, let’s revisit what the Judicial Branch does. It’s basically law enforcement and the judiciary itself: “cops and courts.” Some people, however, would argue that the law enforcement half is really controlled by the Executive Branch. Certainly, on the federal level, that’s very true. Can you think of some examples?
The FBI, yes. The CIA. The Department of Justice. Good. The NSA–you’ve got the idea. But we’re forgetting the big one…the military, that’s right! Okay, the whole enforcement arm of the federal government is completely controlled by the Executive–well, almost. Do Congress or the courts play a role, too?
Congress approves the budget for these agencies and certain Congressional committees exercise oversight: they review CIA, DOJ, and Pentagon policy and sign off on it. But what if the head of the Pentagon–that’s the Secretary of Defense–or the head of the CIA, or the head of the Justice Department (the Attorney General) don’t tell the Congressional committees everything they need to know? That’s another way of seizing power from the Legislative Branch: by not providing all the information needed for Congress to make an informed decision.
The Judicial Branch exercises some oversight of law enforcement, too. For example, when the police want to place a wiretap on someone’s phone, they have to go to a judge and get a warrant to conduct this special kind of blanket search. The police have to provide enough evidence to persuade a judge that there’s a compelling reason to violate a citizen’s right to privacy under the Constitution. So the Judiciary has some control over law enforcement’s actions, right?
What if the police go ahead and place the wiretap anyway, without going to a judge and getting a warrant? What if, when they’re caught in the act of breaking the law, the police refuse to investigate themselves because the Executive Branch–the Mayor, the Governor, or the President, for example–has told them that he has the authority to order wiretaps on anybody at any time, and that his word is more important than a judge’s ruling. This would be a much less subtle way for the Executive Branch to seize power from another branch of government. Can anyone think of an example in recent history when this has happened?
Thank you, Suzie. Yes, the NSA was recently caught tapping the phones of American citizens without first obtaining a warrant. Is anyone investigating this illegal activity? Well, no, they’re not. In fact, the Justice Department just announced that they’re going to investigate and find out who leaked the information to the press. Hmmm.
What do we call it when the Executive Branch seizes power from the Legislative and Judicial Branches and then, when confronted with its own wrongdoing, chooses not to investigate itself but to punish the whistleblowers, the dissidents, the dissenters, instead?
That’s right, Jimmy. We call that a dictatorship.