Hillary, Richardson and the Separation of Powers

If reports are to be believed, Hillary Clinton will accept President-elect Obama’s offer as Secretary of State. If the Washington Post is to be believed, Bill Richardson is actively seeking, and Obama is actively considering him, for Secretary of Commerce.

For those concerned about the separation of powers, or more accurately, the balance of powers, this is a little disquieting.

Why? Well, consider that Clinton is giving up a safe US Senate seat for Sec State. And Richardson passed up running for a US Senate seat that everyone–even Republicans–acknowledged that he would have won without breaking a sweat. Thus, both Hillary and Richardson–savvy politicians knowledgeable of the ways of Washington–have decided that Cabinet posts in someone else’s administration are preferable to being US Senators. The executive branch is so much more desirable than the Senate that they would rather be at-risk of dismissal and give up their political power base than remain in the legislature.

For Richardson, the choice is even more stark, because Commerce is the smallest of the Cabinet departments, and it is fair to say that no one really knows what it does or what its role is. Take a look at the Secretaries of Commerce since the office started. Only one made anything close to a significant policy contribution, and that one was Herbert Hoover (more than eight decades ago).

Maybe Hillary and Richardson has each been given, or is negotiating to be given, a particular policy brief or authority or role in the new administration. But even so, this at least serves as a data point for the proposition that the Senate as an institution has declined in very important ways. Two very significant players apparently don’t think all that highly of it, and don’t think that serving in it can really make much of a difference. What might be their reasoning? What are the causes?

In any event, to the extent that it is true, it suggests the possibility of the rebirth of an Imperial Executive apart from the egregious excesses and crimes of the Bush-Cheney-Addington era, and the relative sidelining of Congress. That is disturbing, regardless of your ideology.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.