Lately, almost every evening on the nightly news, politicians, pundits, and hosts can be heard talking about the “coequal” branches of government. But what if this idea is a myth and not part of the Constitution at all? David Siemers asserts precisely this and comments on the standoff between the White House and Congress to explain his argument.
The House Oversight Committee, suspecting the presence of criminal behavior, has demanded documents from President Trump’s accounting firm. The president has filed suit in federal court to prevent their release. This standoff has placed two ways of constitutional thinking in stark juxtaposition. The first is more familiar to most Americans—two coequal branches are jousting over the proper settlement of a constitutional dilemma. This understanding is pithily captured by political scientist Sarah Binder in a recent Tweet: “the branches typically negotiate out their disagreements; Co-equal branches can’t easily compel the other branch to accede to demands.” Despite being more familiar, I demonstrate in The Myth of Coequal Branches that this way of thinking is actually a recent innovation, stemming from similar disagreements between Congress and the Nixon Administration, which resisted requests of Congress by citing the president’s coequal status.
The second way of thinking has just been articulated by US District Judge Amit P. Mehta in an initial ruling on the Trump case: “It is simply not fathomable that a Constitution that grants Congress the power to remove a president for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct.” Rather than concentrating on how much power each branch has, and asserting that it is equal, this ruling focuses on the legitimate function of each branch. In pursuing their investigation into the Trump organization, Judge Mehta has noted that Congress is operating well within its constitutionally authorized sphere. We can call this latter approach a “separation of functions” understanding of the Constitution, to distinguish it from the idea that there are three branches with equal power.
The choice between these two modes of constitutional thinking is not esoteric. At issue is whether the Constitution’s own outlines for governance are followed, or whether they are replaced by a constitutional myth devised by interested actors. Politicians offer up the idea that their branch is coequal because they know that the idea will be accepted on faith. “Coequality” allows each branch to claim partial control over every matter before government, regardless of constitutional authorization. This rhetoric also forestalls further constitutional analysis. Disputes may end in resolution, but not ones that are satisfactorily explained to the public, who assume that each branch should have equal say.
The American founders did not believe that the branches were equal in power. James Madison and Alexander Hamilton baldly contradicted the idea in The Federalist. We should take care to better understand the constitutional system we are in. Each branch has an equally legitimate role to play, but the branches are not equals in their power or in their function.
Sarah Binder’s Tweet was “published” at 5:29 AM on May 7 2019: https://twitter.com/bindersab/status/1125739509033963523
The Mehta quote is on p. 24 of Trump v. Committee on Oversight filed May 20, 2019: https://assets.documentcloud.org/documents/6019021/Mehta-Order-20190520.pdf
Restoring the Constitution’s Separation of Functions
Published: December 2018