Vail Daily column: The separation of powers |

Vail Daily column: The separation of powers

Newt Gingrich is a rich and endless font of both fascination and material. For a portly 68 year old man, it is, to say the least, impressive how easily his foot can reach his mouth and with what alacrity he can insert it.

This isn’t a Democrat or Republican thing – I am, myself, a Pragmatist – it’s more of a “Hey, c’mon, Newt!” thing or a Ronald Reagan versus Jimmy Carter “There you go again” thing. Sometimes, all one can do is roll one’s eyes. “Really, Newt?”

Ok, so what exactly has a mega-burr under my saddle?

It’s this.

Despite being an undeniably bright and educated man – an historian in fact – and notwithstanding that he’s running for the president of the United States, Newt doesn’t know squat about the Constitution. Or worse, he does, and simply chooses to ignore it. This is odd, parlous shifting ground for an avowed “strict Constitutionalist” and a guy who’s come a’ courtin’ to the Party base.

In a half-hour phone call with reporters about 10 days ago, Newt said that as president, he would abolish whole courts to be rid of judges whose decisions he feels are out of step with the country. “Are we forced for a lifetime to keep someone on the bench who is so radically anti-American that they are a threat to the fabric of the country?” Gingrich asked.

The next day, Newt appeared on “Face the Nation.” Host Bob Schieffer gave the Newtster a chance to ‘splain himself. Instead of letting up though, Gingrich suggested the president could send federal law enforcement authorities to arrest judges who make controversial rulings in order to compel them to justify their decisions before congressional hearings.

When Schieffer asked how he would force federal judges to comply with congressional subpoenas, Gingrich said he would send the U.S. Capitol Police or U.S. Marshals to arrest the judges and force them to testify.

Ay caramba! Newt just threw the Constitution under the bus.

So, for you, Newt, here’s how it’s supposed to work.

Separation of powers forms the very cornerstone of the constitutional framework envisioned by the Founding Fathers. In fact, so fundamental is this system of checks and balances it would not be hyperbole to claim it is the bricks, mortar, sweat and scaffold of the Constitution. It was labored over, thought about, dreamt about, argued over, and debated, and, ultimately arrived at, in order to ensure a form of government in which no individual or group ever becomes too powerful. Even, eh-hem, Newt, the President.

Congress, the legislative branch, consisting of the House and Senate, can pass laws, but the president, the executive branch, can veto them. Congress can, in turn, override the President’s veto. The Supreme Court, the judicial branch, can declare a law approved by Congress and the president unconstitutional. The president can appoint judges to the Supreme Court, but Congress must approve them.

Beautiful, no?

Article 1 Section I of the Unites States Constitution gives Congress only those “legislative powers herein granted” and proceeds to list those permissible actions in Article I Section 8, while Section 9 lists actions that are prohibited for Congress. The “vesting clause” in Article II places no limits on the Executive branch, simply stating that, “The Executive Power shall be vested in a President of the United States of America.” The Supreme Court holds “The judicial Power” according to Article III, and it established the implication of “judicial review” in the seminal case of Marbury vs Madison.

To prevent one branch from becoming supreme, to (in James Madison’s words) protect the “minority of the opulent” from the majority, and to induce the branches to cooperate, government systems that employ a separation of powers need a way to balance each of the separate but interrelated branches of government. The built-in checks and balances allow for one branch to limit – but not override – another, such as the power of Congress to alter the composition and jurisdiction of the federal courts.

Here is what the legislative branch may do: write and enact laws; enact taxes; authorize borrowing; set the budget; reserve and exercise the power to declare war; commence investigations, especially against the executive branch; considers presidential appointments of judges and executive department heads (Senate); ratify treaties (Senate); prosecute impeachment proceedings against executive and judicial officers (House); and override presidential vetoes.

Mr. Gingrich, here is what the Executive may do: veto laws; wage war at the direction of the Congress; issue decrees or declarations; appoint judges (federal judges are appointed for life); appoint executive department heads; and exercise the power to grant pardons (except in cases of impeachment).

The judiciary may: determine whether a law is unconstitutional; determine how Congress meant the law to apply to disputes; determine how a law affects the disposition of prisoners; determine how a law acts to compel testimony and the production of evidence; determine how a law should be interpreted in order to assure uniform policies; and police its own members.

The president may not get rid of judges whose decisions he feels are out of step with the country. The president may not force federal judges to comply with congressional subpoenas. The president may not send brown shirts to arrest the judges and force them to testify.

Please, Mr. Gingrich, you fuzzy-headed radical, hands off the judges!

You should simply know better. And should respect the Constitution.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. His practice areas include business and commercial transactions, real estate and development, homeowners’ associations, family law and divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at his email address,

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