A Question I Asked About "Separation of Powers" at the 2008 Computers, Freedom, and Privacy Conference, Omni Hotel, New Haven, CT
I am Brad DeLong from Berkeley Economics...
A question for Professors Balkin and Haq with respect to the need for "separation of powers" inside the executive branch and within executive branch oversight given the failure of congressional oversight...
It seems to me that Professors Balkin and Haq's vision of within-executive separation and oversight is--well, it is the Justice Department's Office of Legal Counsel. Yet considered as an oversight body to ensure quality and responsibility and, indeed, legality and morality the Justice Department's Office of Legal Counsel has been somewhat... unsuccessful... in the current administration.
To say that congressional oversight is broken, hence we need new mechanisms, raises the question of why the congressional oversight process broke--and what will keep internal executive accountability mechanisms from breaking.
I would put the institutional breakdown's causes in the election of 1994 taught the Republican legislators of Capitol Hill that their jobs are at risk if they fail to support the president of their own party. Hence we now have all the defects of a parliamentary system--lock-step partisan support for the deeds of the executive--and none of its principal advantage which is the vetting of the executive by the experienced legislators of the ruling party.
It seems to me that within-the-executive-branch oversight mechanisms suffer from this problem much more strongly than does congress: if congress fails, the within-executive oversight mechanisms are going to fail faster and more completely. I want you to give me a reason to believe that I am wrong, that in fact within-executive mechanisms will in fact do better. And I would also want you to give me a pony with blue ribbons in its hair...
