Divided We Stand

What to expect from the long-awaited, much-anticipated return of gridlock.

From the February 2007 issue

(Page 4 of 4)

George W. Bush, with a rubber-stamp Congress, has shown less fidelity to the Constitution than any president since Abraham Lincoln. At the very least, with divided government in the next two years, we should expect more constitutional government.

The Bush administration, which has treated the Congress—on the rare occasions when it failed to act as a rubber stamp—as if it were merely a constitutional nuisance, will be forced to read the supreme law of the land, and to recognize and accept the equality of the Congress with the executive branch. With the Democrats in control of both houses, we can now expect congressional interaction with the executive branch to be more in line with what the Founders contemplated.

We can also expect to learn what kind of intelligence the administration relied on and used to persuade the United Nations, the Congress, and the American people that Iraq should be invaded. We can hope to learn what kinds of activities were included in the National Security Agency’s warrantless surveillance program and in the CIA interrogation, detention, torture, and rendition program. And perhaps we’ll discover what poor souls have unknowingly suffered the rape of their constitutional liberties silently administered through the PATRIOT Act.

Unfortunately, whenever Democrats are in charge, we run the risk that wealth transfers will be at the top of their agenda. But I suspect that investigations of the Bush administration and enforcement of constitutional norms will occupy their days.

As for the political theater, it should make for great watching. Think of this: The Republican Congress permitted Attorney General Alberto Gonzales to testify before the House Judiciary Committee and the Senate Judiciary Committee without taking an oath to tell the truth. This is unheard of in American law. Will he now testify when compelled to be truthful? Will he truthfully tell Congress what he knows? What will he do when Congress uses its contempt power against him? The spectacle should be captivating.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at the Fox News Channel. His most recent book is The Constitution in Exile: How the Federal Government Has Seized Power by Rewriting the Supreme Law of the Land (Nelson).

John Hood

For liberty lovers, divided government is said to be ideal. Partisan division is supposed to result in salutary inaction. If a house divided against itself cannot stand, then perhaps a government divided against itself will sit down and shut up.

There is empirical evidence for this proposition. At the federal level, both 1) Ronald Reagan and a (partially) Democratic Congress and 2) Bill Clinton and a (partially) Republican Congress demonstrated more fiscal restraint than did unified GOP government under George W. Bush. At the state level, taxpayers usually have been better off in states with divided government than states where both the governor and legislature shared a party (though it must be noted that the differences are fairly small).

The problem for free marketeers at the moment, however, is that divided government is not really heaven on earth. It’s more like a precarious purgatory. Because spending on Social Security, Medicare, Medicaid, and other entitlements is going to explode in the not-too-distant future, federal inaction is not good news. Policy makers must take action now to avoid big tax increases or other unwelcome outcomes in the future. I’d console myself with the knowledge that at least divided government in Washington means no repeat of the Medicaid Part D disaster, except that I don’t really believe it. The Democratic Congress may prevent another war, and Bush may (finally) veto bad Democratic bills on regulation or trade, but I fear “bipartisanship” is a real danger.

John Hood is president of the John Locke Foundation.