The Instigator
Pigney
Pro (for)
The Contender
tommylibertarian1
Con (against)

The Bureaucracy violates the "separation of powers" of the three branches of government

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Debate Round Forfeited
tommylibertarian1 has forfeited round #3.
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Voting Style: Open Point System: 7 Point
Started: 11/2/2016 Category: Politics
Updated: 1 month ago Status: Debating Period
Viewed: 107 times Debate No: 96645
Debate Rounds (3)
Comments (5)
Votes (0)

 

Pigney

Pro

Round 1 Acceptance
Round 2 Arguments
Round 3 Rebuttals
Please keep it civil.
tommylibertarian1

Con

I'll accept this debate :)
Debate Round No. 1
Pigney

Pro

Thank you Con, I look forward to this debate.
My argument will be summed up like this: The Bureaucracy is part of the Executive Branch of the United States Government, but exercises the rights of all three branches.

First let us establish what "Separation of Powers" is and where it came from.
"The Founding Fathers were heavily influenced by French philosopher Charles Secondat, Baron de Montesquieu when drafting the Constitution, most notably in connection with the separation of powers." --- http://www.americassurvivalguide.com...

The "separation of powers" known to most Americans, is that established in Articles 1, 2, and 3 of the Constitution of the United States. This is the separation of legislative, executive and judicial powers.

Now let us examine the Bureaucracy.
In the U.S., the Bureaucracy is part of the Executive Branch. What does that mean? It means that it is composed of extensions of the president"s power. These extensions come in three types: Government Corporations, Government Agencies, and Executive Departments (whose heads make up the Cabinet).

"The executive Power shall be vested in a President of the United States of America."
Constitution of the United States, https://www.archives.gov...

Therefore, these groups are charged with the executive duties; that is to enforce laws.

The right of the Legislative Branch that is infringed by the Bureaucracy is law making. Law making belongs solely to this branch.

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
Constitution of the United States

The right of the Judicial Branch that is infringed by the Bureaucracy is the right to judge. This right belongs to the judicial branch alone.

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."
Constitution of the United States.

Now let it be examined what the Bureaucracy actually does. It makes regulations to supplement and enforce law passed by Congress, and then takes offenders to court. So, you might ask, "What it wrong with that?" The real question is, "What is right with that?" The answer is virtually nothing.

Let us examine what they do right, that is trying to enforce the laws. That is a good thing right? Yes, but how they go about it is what is wrong. Sure, some of the regulations they make they have real authority to make, Congress usually grants them some form of discretionary authority. But they over step this authority and start making supplemental regulations, a fancy phrase for new laws that we have to obey, but that have not come from Congress.
Now that is bad, but what is worse is that when they take you to court, it is not really a court. Offenders are taken to so called Administrative Law Judges, who are HIRED by the Bureaucracy. That means that not only will justice not be done, but that illicit judges in the Executive Branch are making rulings.

Even if all this was done legally, it would still be a downright infringement of the separation of powers.

I rest my case.
tommylibertarian1

Con

As pro points out the main articles I, II, and III establish the duties and powers of each of the three branches of the United States government. This creates as separation of powers in which the legislative branch makes law, the judicial branch interprets the laws(a power not expressly established until Marbury v. Madison), and the executive branch enforces or executes the laws guided by a chief executive officer being the President of the United States.

The Bureaucracy consists of the 15 executives departments the heads of which are known collectively as the President's cabinet. These departments carry out the enforcement and implementation of legislation passed by congress and signed into law by the President.

Legislation often does not provide all the steps necessary to carry out and enforce or implement laws passed by congress. The legislation only provides basic guidance. This is where rulemaking and regulation comes in.

In order to carry out the functions of the bureaucracy and enforce law the rulemaking process creates not new law but rather how the law and its intent as passed by congress can be enforced and implemented. This is not a violation of the doctrine of separation of powers as the president under his(or maybe soon her) office is tasked with taking steps to enforce and implement the law. Congress and the Constitution empower the executive branch to carry out rulemaking and regulation in the passage of any bill.

Courts have never ruled executive rulemaking and regulation unconstitutional and most executive rules and regulations are upheld by courts when challenged. We see that studies of judicial review typically find that 70% of agency rules are upheld with the Supreme Court upholding 91% of rules; a 2011 empirical study of judicial review found that 76% were upheld. (1)

Thus, the notion of actions of the executive branch bureaucracy being unconstitutional is only a question of theory and not a practical legal question.

The truth is bureaucratic rulemaking and policy is essential to the executive branch carrying out its Constitutionally mandated duties. One can argue that there are too many laws, and too many rules and departments but that is a practical argument about the size and scope of government and is not at question here. Even with a smaller more efficient government the tool of executive department rulemaking would still exist and would still not violate the Constitution.
Debate Round No. 2
Pigney

Pro

Thank you, Con

I will start my rebuttal here: "the judicial branch interprets the laws(a power not expressly established until Marbury v. Madison)" I would also point out that they are charged with the ensuring of justice in the courts (which would include appeals), and judging infractions of laws (when the right to trial by jury is yielded). That will be relevant to my argument.

Next "The Bureaucracy consists of the 15 executives departments the heads of which are known collectively as the President's cabinet." I will clarify that it also includes agencies and government corporations (as stated in the above arguments and the comments below).

You say: "Legislation often does not provide all the steps necessary to carry out and enforce or implement laws passed by congress. The legislation only provides basic guidance. This is where rulemaking and regulation comes in" This is correct, but agencies tend to ignore the discretionary guidelines given (and sometimes not given) by Congress. In any case, we have non-elected officials making regulations, which is constitutional, but then in the cases of the IRS or the EEOP or other agencies, we have them making the equivalent of laws in their regulations.

You say: "In order to carry out the functions of the bureaucracy and enforce law the rulemaking process creates not new law but rather how the law and its intent as passed by congress can be enforced and implemented. This is not a violation of the doctrine of separation of powers" They overstep their boundaries. But call that my opinion, and we can move along.

You say: "Courts have never ruled executive rulemaking and regulation unconstitutional and most executive rules and regulations are upheld by courts when challenged" Okay, here is where we have a problem. The ALJ courts have no constitutional authority to issue judgement, they are not part of the Judicial Branch, therefore, they have no authority. Just because SCOTUS hasn't said no to them does not mean they are legal.

You say: "We see that studies of judicial review typically find that 70% of agency rules are upheld with the Supreme Court upholding 91% of rules; a 2011 empirical study of judicial review found that 76% were upheld. (1)" But what about those 30%, if it interests anyone, it is common practice for ALJ's to be fired if they rule against their employer. Of course, that is a hard thing to prove, since immunity is 'guaranteed' by agencies, but history says otherwise. But again, hard to prove given the said guarantees, so we can ignore that statement.

You say: "Thus, the notion of actions of the executive branch bureaucracy being unconstitutional is only a question of theory and not a practical legal question." Here is the main problem with Con's argument. I said in my first argument "Even if all this was done legally, it would still be a downright infringement of the separation of powers." We are talking about the separation of powers, not whether or not it is constitutional. I am convinced that the Bureaucracy is unconstitutional, but that is not what i established this debate over. This is over violation of the "separation of powers" of the three branches of government. If one branch is practicing all three powers, or even just two, regardless of whether or not it is legal, they are violating the separation of powers. You admitted the ALJs make rulings, thus you agree that the bureaucracy violates the separation of powers.

That goes for this statement as well. "The truth is bureaucratic rulemaking and policy is essential to the executive branch carrying out its Constitutionally mandated duties. One can argue that there are too many laws, and too many rules and departments but that is a practical argument about the size and scope of government and is not at question here. Even with a smaller more efficient government the tool of executive department rulemaking would still exist and would still not violate the Constitution."

The Bureaucracy violates the "separation of powers" of the three branches of government, regardless of whether or not they do it in implied legality, explicit legality, or completely illegally.
This round has not been posted yet.
Debate Round No. 3
5 comments have been posted on this debate. Showing 1 through 5 records.
Posted by tommylibertarian1 3 weeks ago
tommylibertarian1
Sorry life got out of control and I couldn't finish this one
Posted by Pigney 4 weeks ago
Pigney
Well bummer, does that mean this is a tie, or does it count as a win for me?
Posted by tommylibertarian1 1 month ago
tommylibertarian1
Sorry forgot my citation at the end of my argument in round 2 here is the source
Pierce RJ, Weiss J. (2011). An Empirical Study of Agency Interpretations of Agency Rules. Administrative Law Review.
Posted by Pigney 1 month ago
Pigney
Bureaucracy being Executive Departments, the Government Agencies, and the Government Corporations, the ones that really violate separation of power are the agencies.
Posted by tommylibertarian1 1 month ago
tommylibertarian1
I'm interested but could you provide a precise definition of "the bureaucracy"?
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