Separation of Powers – Checks and Balances – A Good Thing

In the last sixty days, we have witnessed in operation, the “checks and balances” that the architects of both the United States and Maryland Constitutions brilliantly and strategically built into the Separation of Powers set forth in both of those documents. Specifically, we have seen several U.S. District Court and one Federal Appellate Court check the President of the United States’ reach for almost unlimited power and the exigent elimination of any meaningful role for the other branches of the federal government in conducting the “War on Terrorism,” thereby restoring the balance between all three branches of government explicitly provided for in the United States Constitution. The Federal Executive will now have to seek the cooperation, if not concurrence in the form of legislation, from the Congress of the United States in order to depart from express and/or established Constitutional and statutory authority as he prosecutes his version of the “War on Terrorism” and the “enemies,” real and imagined that our President encounters while he engages in that unconventional conflict.

The President will also have to pay attention, whether he wants to or not, to institutions of government which he apparently doesn’t like, or at least doesn’t appreciate, these include The Intelligence Agencies of government as well as those in the private sector, i.e. The Press, which are constitutionally protected in order to ensure that his government operates in a manner consistent with the view of the United States Constitution held by a majority of the Justices of the United States Supreme Court. That view limits the rights of the Executive branch of government to deprive citizens, or in some cases, even some non-citizens, of basic freedoms regardless of their religion or country of origin or domestic political persuasion accordance with certain applicable provisions of the United States Constitution.

Meanwhile, heading up Route 50 to Annapolis, The Maryland General Assembly is busy creating its own mischief by tinkering with legislation to undo the good work of The Maryland Court of Appeals and it’s Rules Committee in passing a Rule relegating the use by judicial officers (judges and commissioners) of cash bail to those instances where there is not a better alternative to its use as a tool to insure the safety of this state’s communities and the likelihood of the accused appearing as directed for all court appearances.

The truth be told – cash bail never makes our community safer by protecting it from dangerous defendants unless the bail is so high it can’t be posted. If the dangerous and violent defendant is out on the street, he is just as dangerous if he is out on bond as he would be if he was just out. On the other hand, if we set a bond that the dangerous defendant can’t post, it isn’t the high bond that is protecting us, it is the reality that we are detaining the defendant to insure our safety. If we, as judicial officers, are going to do that, as we should, we ought to be intellectually honest with ourselves, the defendant, and the public and openly acknowledge that in fact that is what we are doing.

No, the truth is that the only real justification for this misguided legislation is to save the Bail Bond industry which, notwithstanding, it’s longstanding generosity in distributing it’s substantial campaign contributions to its supporters has suffered serious economic losses since the movement toward criminal justice reform began. Those losses have only intensified since the Rules Committee and The Court of Appeals heeding the advice of Maryland’s Attorney General, Brian Frosh, and its own conscience exercised leadership in enacting The Rule on Bail Bonds despite admonitions from the leadership of The General Assembly that this issue was the responsibility of the legislative branch of government.

That point is at best arguable! If it is ever litigated, my bet is on The Attorney General’s position that the New Rule was necessary and the previous legislatively blessed practices and protocols were likely unconstitutional and certainly unfair.

It is unfortunate that The Bail Bond industry in this state has, and no doubt will suffer serious economic losses. That undeniable fact should not be the basis for the failure to reform an unfair and likely unconstitutional practice that deprives citizens of their freedom solely based on their economic status. That would be – in a word, not good public policy.

What does all this mean in both our state and our nation, and where is it leading? It certainly means that as syndicated columnist E.J. Dionne, Jr. points out in his book Why Americans Hate Politics, “Wisdom is not the exclusive province of any one side of the political debate or of any one branch of government in this country and in this state.

With that in mind, coupled with the persistent conflict between political parties at the federal level spreading to state level, as well as the conflict between the three branches of government evident at both levels, it is clear that these tensions will continue unabated for the foreseeable future. Balancing this conflict and working through the accompanying tensions by channeling our energy toward goals that are in the public interest is work that constitutes “the public good.”

Politics should once again become a deliberative process through which elected and appointed officials, including legislators and judges, in good faith seek to resolve disputes, find remedies and move forward. It should stop being a process by which politicians discover postures through polling, focus groups, etc. that offer nothing more than short term political benefits. As E. J. Dionne perceptively notes, “We give the game away when we talk about issues, not problems – problems are solved: issues are merely what politicians use to divide the citizenship and advance themselves.”

What can be done to restore this sense of public enterprise and mutual obligation? First, we must recognize, as did Daniel Patrick Moynihan, a Democrat with a Ph.D. who worked for Republican, Richard Nixon, and was a Professor, Ambassador and, ultimately, a United States Senator. “We’re all entitled to our own opinions, but we’re not entitled to our own facts.” Or as is now the vernacular “alternative facts.” Second, we must remember that we must elect and appoint leaders and judges who are prepared to commit themselves to principles which transcend, but do not necessarily conflict with their own private and political interests. How do we do that? Good question!