Everyday Politics Blog

Senate Vacancies (again) and the contours of Federalism

by David Watkins

Last year (Here, and again here) I wrote about the puzzling politics of replacing Senators mid-term, Hillary Clinton, Ken Salazar, Barack Obama, and Joe Biden all left their Senate seats for the executive Branch. A little known quirk of the American political system became quite prominent: quite unlike the House of Representatives (where seats remain vacant until a special election is held), vacant seats are replaced in the Senate in a number of diverse that sometimes involve special elections and gubernatorial appointments (sometimes with restrictions, sometimes without) and combinations of the two. This curious diversity is a product of the 17th Amendment, which provided for direct election of Senators:

When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

In recent months, the Senate vacancy issue has become prominent again. Just days before his death, the ailing Ted Kennedy wrote a letter (which can be read here) to lawmakers in Massachusetts encouraging them to make an alteration to existing law. The 2004 law, which he supported, requires a solution to Senate vacancies similar to House elections--no gubernatorial appointments, and a special election held 145-160 days after the vacancy was created. Kennedy's suggested alteration was for a placeholder appointment (who would not be eligible to run). Kennedy wished to retain the democratic spirit of the 2004 law, without depriving Massachusetts of what could turn out to be a crucial vote on a health care reform bill in the next few months. Critics accused him of trying to change the rules of the game to suit his short term political interests. The Massachusetts legislature is still considering acting on Kennedy's request.

Meanwhile, in Florida (where vacancies are filled by gubernatorial appointment) popular Republican Governor Charlie Crist was given the opportunity to appoint the replacement for Senator Mel Martinez, who retired early. It was long known that Martinez had no plans to run for reelection in 2010, but his sudden retirement was a surprise. Crist did have the legal ability to appoint himself, and is widely believed to be contemplating a run for the Senate himself, so arguably this situation may have produced a conflict of interest (although not necessarily a favorable one, as Nate Silver argues here). In the end he appointed George LeMieux, his former campaign aide who will be sworn in tomorrow.

Frustrated with this state of affairs, Senator Russ Feingold has proposed a constitutional amendment to end the practice of Gubernatorial appointments and make special elections the law of the nation. In doing so, he's arguably pitted one central value of American politics (electoral control of legislators, government of, by and for the people) against another (federalism). It might be reasonable to argue that federalism in this case makes less sense than, say, governing education or criminal prosecutions locally, but on the other hand, unlike virtually every other state, we leave the administration of elections to local governance. 

Given the high bar Constitutional amendments must pass, Feingold is unlikely to be successful. Nevertheless, it raises interesting questions about the purpose and proper boundaries of federal variation. When considering the appropriate scope and boundaries of local and federal jurisdiction, it is sometimes too easy to let the constitution (or our favorite interpretive strategy of the constitution) do our thinking for us. Beyond the general good of adherence to the constitution, what principle or practical concern (if any) justify the status quo? Is Feingold's proposed amendment worthy of support, or an intrusive interference in local governance?

Class War? What Americans Really think about Economic Inequality

by David Watkins

Over the Summer, I'll offer brief reviews of recent books of interest to students of American Politics. I begin with a short but important book about public opinion regarding economic inequality in the United States. Class War? What Americans Really think about Economic Inequality by Ben Page and Lawrence Jacobs, provides an overview of 'the data' on public opinion. They review existing polls on the subject over the last several decades, and commissioned a major poll of their own (conducted in 2007; interestingly, the public opinion they measure is prior to the current economic crisis).The central finding is one that many who’ve followed public opinion closely have long known—that substantial majorities of American have favored a number of policies that reduce economic inequalities and threaten opportunities, and they express a willingness to pay for these policies as well. In addition to this startling and direct finding, their analysis of the data reveals three other significant features about American public opinion on economic inequality:

Agreement. For those of us who follow politics closely, the fact that Republicans and Democrats largely agree on most issues regarding economic inequality will probably come as something of a surprise. Certainly, this fact often seems to have little effect on the behavior of Republican politicians, and would seem foreign to those who interact primarily with Republican Party activists and movement conservatives. But on question after question, over time, Republicans are generally only slightly less likely than Americans overall to support measures to reduce economic inequality and increase economic opportunity. A few examples: 72% of Americans affirmed the statement that “Differences in income in America are too large”—as did 56% of Republicans (pg. 44). 64% of Americans said they were willing to pay more taxes to support funding for early childhood education in kindergarten and pre-school, as did 57% of Republicans (pg. 59). Should the federal government see to it that everyone who wants to work can find a job? 67% of all Americans and 60% of Republicans say yes (pg. 62). Is it the task of government to see to it that no one is without food, clothing, or shelter? 68% of Americans and 61% of Republicans say yes (pg. 72). This pattern repeats itself with High-income Americans, who respond in a similar fashion to Republicans. There is little widespread disagreement amongst American voters on these issues, at least along the traditional cleavages where we’d expect to find it. 

Knowledge. A number of survey questions in chapter two indicate that Americans are actually quite knowledgeable about economic inequality. Many might find it inconsistent that a solid majority of American agree with the statement “In order to get people to work hard, large differences in pay are necessary” (pg. 33) while at the same time supporting measures to reduce inequality. But it’s not necessarily inconsistent at all. One can support inequality—even large amounts of it—and still recognize that we currently have too much, and more than is necessary for any socially beneficial consequences of inequality. On inequality issues, American public opinion is more knowledgeable than is often assumed. 

Complexity. What I’ve presented here is fairly straightforward, but Page and Jacobs introduce an important twist in understanding American public opinion on inequality. We are, in an important sense, philosophically conservative. Americans want work, effort and talent to be well-rewarded. They want actions and choices to have consequences, positive and negative. They remain suspicious that governments will spend our money well. But when our questioning moves from the realm of abstractions to specifics—health care, education, taxation, and the like, they seemingly abandon this conservatism and support action to reduce inequality. Page and Jacobs call this operational liberalism, which combined with philosophical conservatism yields a result they call ‘conservative egalitarianism.’  

These three features—agreement, knowledge and complexity, suggest a very different picture of American public opinion than we are often presented with in contemporary political discourse. But this analysis raises an obvious question—if there is so much agreement on these matters, why is there such tepid support for substantial inequality-reducing reforms? Page and Jacobs don’t tackle this difficult question until the end of the book. There are many possible answers, I think, and the ones they prefer—inaction due to the structure of American politics and, more importantly, interest group politics resulting in the overrepresentation of elite interests and perspectives in government, seem as plausible as any. Nevertheless, the book, while succeeding admirably at presenting a more accurate picture of American politics than is typically presented, left me wanting a more thorough discussion and investigation of the gap between political preferences and policy. This book is an excellent beginning to this discussion. 

EPA, Greenhouse gases and Climate Change: A follow-up

By David Watkins

A quick follow-up to a post I wrote last October (here): The EPA has determined that greenhouse gases "pose a threat to human health and welfare" and as such should to be regulated by the EPA, according to the Clean Air Act. As readers of my post will recall, the EPA had been ordered to do this by federal courts over two years ago. What changed? It's no secret that the leaders of the EPA under Bush didn't want to take this step, and that they dragged their feet on complying with the judicial order. Under Obama, EPA officials serve a president who has pledged to make climate change a priority. (For more, see Kate Sheppard and the EPA press release for more)

But what does this mean? At this point, it's hard to say. After a 60 day public comment period, the EPA is legally required to regulate CO2 and other greenhouse gas emissions. But the extent, nature and timing of those regulations are at the discretion of EPA officials. (more details here) It's far from clear what those EPA regulations will look like. In terms of politics, this ruling puts the ball on climate change policy squarely in the court of congress. As we've seen with the stimulus and other bills recently, the overwhelmingly Democratic congress is not always inclined to give Obama precisely what he wants in legislation. For a variety or reasons, members of Congress with to have real input and leave their mark on public policy. Now, if Congress drags their collective feet on climate change, the Obama administration can simply begin to construct major components of a climate change policy without them, through the administrative process of the EPA as outlined by the Clean Air Act. Obama still probably won't get precisely what he wants out of any future legislation, but the EPA's mandate to regulate greenhouse gases slightly shifts the balance of power away from congress and towards the executive branch.

Still, it remains to be seen whether any new greenhouse-gas specific bill will have much of a chance of passing the Senate, where the opposition party still holds some power through the filibuster and many Senate Democrats have long been wary of enacting climate change policy. The EPA decision does raise the stakes on congressional inaction. The time frame? The House of Representatives is planning to work on a climate change bill this summer, when the new EPA regulations, whatever they may be, might begin. There's an international meeting on CLimate Change in Copenhagen in December, and Obama would surely like to have something to demonstrate to the international community that the US is now serious about climate change--if not legislation, new EPA regulations will have to do.

First Amendment Controversies, part II: The future of the Bipartisan Campaign Reform Act

By David Watkins

A few weeks ago Laura McKenna wrote about some controversial exceptions regarding the 1st amendment as it applies to freedom of the press. I'm following up today with a quick note about another ongoing first amendment controversy regarding political speech.

You've probably noticed the ubiquitous "I'm so-and-so and I approved this message" at the end of candidate radio and television advertisements. This is one of the many consequences of the Bipartisan Campaign Reform Act of 2002, more commonly known as"McCain-Feingold" after its somewhat unlikely lead sponsors in the Senate. The purpose here is to make clearer and more obvious the distinction between a candidate's own words and message and other political messages. The fight over this bill was particularly intense in the Republican party, where many Republicans' opposition to the core ideas of this bill was particularly strong (McCain's championing of campaign finance reform is a significant contributing factor in his reputation as a "maverick" in the Senate).The bill almost immediately produced a legal challenge from Kentucky Senator Mitch McConnell. McConnell was following the precedent set by Jim Buckley, a congressmen who sued over a campaign finance bill in the 1970's.

In that case (Buckley vs. Valeo) the court upheld the law's restriction on individual contributions to political candidates. However, the court also ruled that spending money to attempt to influence the outcome of elections is a constitutionally protected act of political speech. In the BRCA, the phenomenon known as "issue ads" were not directly prohibited, but they were further regulated. Defined as "electioneering communications," these ads were now subject to numerous restrictions to limit their coordination with campaigns and impact on elections. The proximity of third party ads naming candidates were restricted, as were the entities permitted to fund them (corporate and union sponsorship of such ads, for instance, were restricted). McConnell was less successful than Buckley; the vast majority of the key provisions of the BRCA were upheld in the 2003 decision

However: the status quo is precarious. For one thing, the majority in McConnell vs. FEC was a bare 5-4 majority, and included the no-retired Sandra Day O'Connor. Her replacement, Samuel Alito, is much more likely to side with those who find these restrictions unconstitutional. In fact, a new case in which the BRCA's constitutionality was questioned was recently argued before the Supreme Court. The case involves the question of restrictions on the distribution of a 90 minute anti-Hillary Clinton documentary, and whether it could be distributed. The government's lawyers are arguing that the ability to restrict campaign advocacy materials extends beyond simple advertisements:

Several of the court’s more conservative justices reacted with incredulity to a series of answers from a government lawyer about the scope of Congressional authorityto limit political speech. The lawyer, Malcolm L. Stewart, said Congress has the power to ban political books, signs and Internet videos, if they are paid for by corporations and distributed not long before an election.

Mr. Stewart added that there was no difference in principle between the 90-minute documentary about Mrs. Clinton, “Hillary: The Movie,” and a 30-second television advertisement.

Justice Anthony M. Kennedysaid the government’s uncompromising position could have dire consequences for the McCain-Feingold law....

“Hillary: The Movie,” a documentary with elements of polemic and advocacy journalism, was produced by Citizens United, a conservative nonprofit corporation. It was released during the Democratic presidential primaries last year, and a lower court said it could not be broadcast within 30 days of those elections.

(full story here)

We'll have to wait for the decision to come down, but based on oral arguments it seems possible that the legal interpretation of the relationship between protected political speech and political advocacy in campaigns may change again. But whatever the court decides in this case, the controversy isn't going away. There are a number of difficult questions swirling around this debate, including: What is the relationship between 1st amendment protected political speech, and money spent to disseminate that message, and the strategic targeting of those messages for elections? Should money spent of the dissemination of speech be subject to more regulation than the speech itself? Should proximity matter? If we allow money spent on political speech to go largely unregulated on first amendment grounds, will the political ideas and perspectives of those without much money be crowded out?

Republican Strategy

by David Watkins

A journalism student here at Seattle University recently interviewed me about the Republican party's political strategy as a political minority in era of Obama. She, like many of my students, were surprised that despite Obama's efforts, virtually all Republicans in congress voted against his economic stimulus bill. She was particularly interested in why Republicans would take a such an oppositional stance against Obama's core policy initiatives, at a time when Republicans have suffered substantial electoral losses and Obama is quite popular. (On Obama's popularity see here. Obama's approval rating is more than twice as high as Bush's was throughout the last several years of his presidency. Perhaps even more astonishingly, Obama has a higher approval rating among self-idenfified Republicans than Bush had overall!)

What does the GOP have to gain from not compromising in a bipartisan manner?

Political scientists have repeatedly demonstrated that one of the most accurate indicators of voting behavior is economic performance. While the current economic catastrophe is probably not a "normal" recession and is difficult to project in terms of length and intensity, there is a very good chance we will still be in recession, or recovering weakly and slowly, in time for the 2010 midterm election. If the Republican party opposes Obama/Democratic efforts to protect/create jobs and turn the economy around, and the economy still looks and feels pretty bad to voters in 2010 (and/or 2012), they can put forth the following claim: "Obama/Democratic leadership pursued a failed strategy, we knew it was doomed to fail and that's why we opposed it, now give us a chance and we'll do something that works." However fair this is, it's a message that might work.

However: this is far from guaranteed to be successful. The GOP model, from a strategic perspective must be 1994 (Senate, House), when they made substantial gains and won back the House and Senate from Democratic control. They did so after two years of blocking and opposing Clinton's attempted legislation, including Health Care reform. The nightmare scenario finds a historical example in the midterm election of 1934 (Senate, House) in which the already-dominant Democrats gained nine seats in each house.

So which of these is 2010 more likely to resemble? One important similarity with 1934 is the economy, but also, at least for now, the impression that the Republican party is out of their depth on economic matters. Of course, 1994 is much more recent history and Heath Care reform may be on the agenda again. But: Obama is a much more popular president, who had a much larger share of the national vote than Clinton (because of the 3rd party candidacy of Ross Perot, Clinton won in 1992 with only 43% of the popular vote to Obama's 53%). And if Health Care reform is on the agenda, it is unlikely it will be as useful an issue for the Republican leadership as it was in 1994; health care costs have continued to grow and Democratic solutions are more popular now then they were in the past. Here's a good summary of public opinion on health care issues today.

A final thought on this question: It presumes that the Republican party is pursuing a long term, coordinated political strategy by opposing Obama. But there's another, perhaps simpler explanation. Many Republicans elected from moderate districts have lost their seats in the last two elections, leaving the remaining republicans overwhelmingly from "deep red" districts. As they became a small minority party, they became more conservative. It's quite possible they're opposing Obama's agenda in good faith.

Either way, the Republicans have their work cut out for them if they are to be electorally competitive. Here's the detailed version of  a recent New York Times poll. I'm particularly interested in questions 48 and 49. When asked if Obama should stick to his policies of work in a bipartisan way with Republicans, his policies won 56-39. When the same question was asked about Republicans, 79% said they should work in a bipartisan way with Obama, and only 17% said stick with policies. It's possible that frustration with the economy will push people back towards the Republicans, but they've got a long way to be pushed. 

The value of partisanship?

By David Watkins    

In my class discussions about Barack Obama's inauguration speech this week, the following line garnered a lot of attention:

On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn-out dogmas that for far too long have strangled our politics. We remain a young nation, but in the words of Scripture, the time has come to set aside childish things.

The precise meaning of "childish things" we must set aside in this formulation was subject to some debate, but it seems to refer to partisanship and party loyalty. This fits with a major theme of Obama's campaign; he has, over the last 18 months, pledged to lead us out of a period of aggressive partisanship and towards an era of pragmatic politics that puts the good of the nation first, above party politics. While Obama has been a particularly eloquent advocate of this position, he's hardly breaking new ground in political rhetoric. See this post by political theorist Jacob Levy for examples of similar sentiment in the inaugural addresses of the previous four presidents. It is part of the tradition of American Politics to make such pledges (with, to state the obvious, mixed results).

But how desirable is this goal? I think there are reasons to be skeptical. In the 1950's, the Democratic and Republican parties were, in many ways, less partisan than they are now. The real divide in politics at the time were regional, not party based. Southern politicians tended to be quite conservative defenders of southern racial segregationism. They were almost all Democrats, but they bore little relation to more liberal Northern Democrats. Indeed, northern Democrats had a great deal more in common with northern Republicans, politically speaking, than they did with their fellow Democrats from below the Mason-Dixon line.

If one of the reasons we value democratic political participation is because 'we the people' should have a meaningful say in the governance of the country, then a lack of partisanship and party division, arguably, means we might have less of a meaningful choice at the polls. If there is little distinction between the parties, it's harder to convey satisfaction or dissatisfaction with policy through voting. Consider 2006--a major issue in this midterm election was the increasingly unpopular war in Iraq. One party mostly stood behind the war, where the other voiced opposition to starting the war in the first place, and advanced a policy of withdrawal. While the election of 2006 can't be reduced entirely to a referendum on the Iraq war, that played a substantial role. If the war had been a bipartisan policy, with little disagreement between the two parties, voters would have been deprived of a meaningful way to express their dissatisfaction with this policy. (Ultimately, little changed as a result of the election, because in large part foreign policy power lies in the hands of the president.)

I'm starting to read a new book by Harvard Political Scientist Nancy Rosenblum, On the Side of the Angels: An Appreciation of Parties and Partisanship. (follow the link for an informative, thorough review). When I've finished the book, I'll share some more of my thoughts her work here on Everyday Politics. The book is a history of what Rosenblum calls "antipartyism" in political discourse, and an effort to push back against this dominant trend and make a more positive case for parties than we're used to seeing. Parties and partisanship, Rosenblum argues, aren't just unavoidable, they are desirable and valuable in their own right.    

Do you think political parties a necessary evil in American politics, or are they have positive value? Is partisanship, as Rosenblum argues, desirable as well as unavoidable, or is it a pathology we can move beyond as we move towards a more mature politics (as Obama's speech suggests)?

Inauguration Day

By David Watkins

The inauguration of the 44th President of the United States is just moments away. While it's hardly the most important topic of the day, the challenge of providing security and control for such an event is immense and difficult. More on the security challenge here.

But as an interesting bit of political history, and a point of comparison to consider how much some things have changed, compare this inauguration to that of Andrew Jackson in 1828. Jackson's election was seen as a particularly significant and historic one because he was the first president who was not from East Coast elite circles. He revived a practice began by Washington by giving his inaugural address outdoors, thus accomodating the unusually large crowd of supporters who'd come to see the festivities. It was then, however, that things took a turn for the worse. From an eyewitness account:

The south side of the Capitol was literally alive with the multitude, who stood ready to receive the hero and the multitude who attended him. . . When the speech was over, and the President made his parting bow, the barrier that had separated the people from him was broken down and they rushed up the steps all eager to shake hands with him. It was with difficulty he made his way through the Capitol and down the hill to the gateway that opens on the avenue. Here for a moment he was stopped. The living mass was impenetrable.

After a while a passage was opened, and he mounted his horse which had been provided for his return (for he had walked to the Capitol) then such a cortege as followed him! Country men, farmers, gentlemen, mounted and dismounted, boys, women and children, black and white. Carriages, wagons and carts all pursuing him to the President's house. . . . [W]e set off to the President's House, but on a nearer approach found an entrance impossible, the yard and avenue was compact with living matter."

(several hours later, at the White House)

No arrangements had been made no police officers placed on duty and the whole house had been inundated by the rabble mob. We came too late.

The President, after having been literally nearly pressed to death and almost suffocated and torn to pieces by the people in their eagerness to shake hands with Old Hickory, had retreated through the back way or south front and had escaped to his lodgings at Gadsby's.

Cut glass and china to the amount of several thousand dollars had been broken in the struggle to get the refreshments, punch and other articles had been carried out in tubs and buckets, but had it been in hogsheads it would have been insufficient, ice-creams, and cake and lemonade, for 20,000 people, for it is said that number were there, tho' I think the number exaggerated.

Ladies fainted, men were seen with bloody noses and such a scene of confusion took place as is impossible to describe, - those who got in could not get out by the door again, but had to scramble out of windows. At one time, the President who had retreated and retreated until he was pressed against the wall, could only be secured by a number of gentleman forming around him and making a kind of barrier of their own bodies, and the pressure was so great that Col. Bomford who was one said that at one time he was afraid they should have been pushed down, or on the President. It was then the windows were thrown open, and the torrent found an outlet, which otherwise might have proved fatal.

Taken from Mrgaret Bayard Smith, The First Forty Years of Washington Society (1906). Excerpts online here.

 

Special elections and incumbency advantage

By David Watkins

Always check your facts. Two days ago, in post about Senate vacancies, I wrote:

Setting aside the ethics and the law for a moment, Blagojevich is certainly correct about one thing--the senate seat he has the power to appoint is a valuable commodity indeed. It's just for two years, initially, but as all students of American politics know, incumbency advantage is a powerful thing, and his appointee, as a Democrat, would have a particularly strong advantage in Illinois, an overwhelmingly Democratic state.

I think two central claims here are accurate. First, the Democratic candidate in a 2010 election will hold an advantage in Illinois, and second, that the power to appoint a senator for two years is indeed a powerful thing. But it turns out the statement in bold, while generally accurate in American politics, may be somewhat misleading in this context. Nate Silver, who runs an excellent blog about politics and elections called fivethirtyeight.com, took a look at the last 49 Senators appointed by Governors to a vacated seat. Here is what he found:

Of those 49 senators, only 19 -- fewer than 40 percent -- won their subsequent special election. Meanwhile:

* 13 of the 49 (27%) ran for office, but were defeated in the general election;
* 7 of the 49 (14%) ran for office, but were defeated in the primary;
* 10 of the 49 (20%) chose not to seek a permanent term (including one who was prohibited by state law from doing so).

At first glance, incumbency advantage isn't apparent here at all--only 19/39, less than half, who sought reelection, managed to win. How might we explain this? Nate Silver has some further thoughts on this that are worth reading. Two (interrelated) reasons seem worth highlighting. First, many of the appointed Senators have been appointed due to their personal connections--they have wives, children, and college roommates of other powerful politicians. They got there for reasons that have little to do with the preferences of that state's electorate. Secondly, we have to think conceptually about incumbent advantage. One reason incumbents have an advantage is that they're good at winning. How do we know? They've already done it at least once in this constituency. We don't know if appointed Senators know how to win in a statewide race or not.

The EPA and the Separation of Powers

By David Watkins

Hi! I'm delighted to welcome you to this blog, and to the study of American politics. News about American politics today is focusing a great deal on the upcoming election and the next president, so for my first post I wanted to direct your attention back to the current president. Like other recent two-term presidents, George W. Bush's second term in office has been marked by controversies and scandals. One that has drawn little public attention involved the Environmental Protection Agency, or EPA. The EPA is, of course, part of the executive branch. It was created in 1970 with the passage of the National Environmental Protection Act, or NEPA. Most major environmental laws, including the Clean Air and Clean Water acts, were written with the EPA as the primary agency in charge of implementation and enforcement.

So the EPA was created by Congress, enforces laws written by Congress, but is part of the executive branch of government. Each president appoints his or her own EPA administrator, so the priorities of the current administration are reflected to no small degree in the EPA. We know that in theory, the legislative branch of government writes the law, and the executive branch of government enforces the law. But that leaves unanswered a number of important questions. For example, how much power does each branch have in shaping environmental policy in practice?

The history of the Bush administration's EPA provides ample opportunities to reflect on this question. Consider the EPA's handling of the Clean Air Act. This landmark piece of environmental legislation, first passed in 1970 and substantially amended in 1977 and 1990, has long been one of the most important enforcement tasks for the EPA. In March of 2002, a senior EPA official in charge of enforcing Clean Air Act provision, Eric Schaeffer, resigned in protest of the Bush Administration's interference with efforts to enforce the Clean Air Act. (Along with other former EPA employees, he founded the Environmental Integrity Project, an interest group devoted to the enforcement of environmental laws). Later that year, Bush announced substantial changes to the source reviews that the EPA would do in enforcing the Clean Air Act. This rollback changed the EPA's enforcement procedures substantially in several ways. One example: prior to these changes, if a source of pollution wished to expand their operation in a way that increased their emissions, they were required to apply for permission from the EPA and undergo a period of public comment. Now it was up to EPA inspectors to see if these new facilities were compliant, and Bush's changes made inspections rarer than before.

All of these changes took place without any involvement from Congress. However, in the 2003 budget bill, the Senate passed an amendment that cleared the way for Bush's changes. Congress helped make the changes into law, but it was the Executive branch who clearly led the way.

More recently, controversies surrounding the Clean Air Act have also included the judicial branch of government, as well as state and local governments. In 2003, the EPA announced that the Clean Air Act did not apply to carbon dioxide, by far the most substantial greenhouse gas emitted in the US, as well as other greenhouse gases. The EPA argued that global warming did not fall under the regulatory boundaries of the Clean Air Act. This was a controversial reading of the act. While greenhouse gases are not on the list of gases included in the original bill, the legislation also says that the clean air act governs "any pollutant" from motor vehicles that the EPA director judges to be a cause or contributor to air pollution and harmful to public health. There is a strong case that greenhouse gases meet this criteria.

But in this case it was not congress who challenged the EPA on this front. Twelve state governments and several cities sued the EPA. In 2007, the Supreme Court ruled (overturning the decision of the DC circuit court) by a narrow 5-4 decision that greenhouse gases fell under the category of an "air pollutant" under the CAA and were to be regulated by the EPA. The text of the case can be found here and a useful discussion can be found here.

At this point it might appear that the power of the executive branch was checked not by the legislative branch, but by the judicial branch (with an assist from state and local governments). But the story does not end there. In the year and a half since that decision was handed down, little has actually changed. Congress has investigated the EPA's progress, or lack thereof, and concluded that while the EPA did, in fact, comply with the decision and worked hard on a plan to comply with it, but that plan was rejected by administration officials. Congressional investigations came up with evidence that the White House may have simply ignored and not opened emails dealing with this decision. Further investigations into the matter have been thwarted by a refusal to testify or turn over documents. The Bush Administration continues to lose court cases about how they've handled the Clean Air Act, but with less than four months to go, it now seems unlikely any of these cases will have an effect on actual EPA policies and practices.

So what does all this mean? You can draw your own conclusions, of course. But when thinking about the separation of powers in American politics, the formal rules and roles of the different branches of government don't tell the whole story. As the incidents discussed in this post indicate, there are many informal ways the executive branch can substantially alter the impact, power, and scope of legislation and judicial decisions. The actual scope of executive power often cuts into the terrain of other branches of government.