Putting Separation of Powers into Practice: Reflections on Senator Schumer’s Essay

BY PATRICIA WALD & NEIL KINKOPF

Senator Schumer identifies a “sustained and systematic assault” from Congress’s sister branches as the primary cause of weakening Congressional power in recent years. He provides a masterful account of the presidential strategy of bypassing consultation with Congress, resisting oversight of executive operations, and reinterpreting the laws Congress passes. Somewhat less convincingly, he finds a threat “no less nefarious” in recent Supreme Court doctrines that, in his view, usurp Congressional fact-finding powers in order to declare laws unconstitutional. It is, according to Senator Schumer, the “unprecedented combination of these two threats” that portends a troubling imbalance in the separation of powers and checks and balances structure of our Constitution. Given the strength of these assaults, the Senator worries that, unless counteracted soon, they will prove “difficult to dismantle” and “impossible to undo.” He acknowledges that Congress itself has been largely supine in fighting back, and he puts forth some useful ideas for reforms in the way the war on terror might be conducted by joint action of the two political branches and how Congress might more effectively pursue its “advise and consent” function with regard to judicial nominees.

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