Why separation of powers matters: Is freedom inevitable?
The answer to that question is obvious but essential.
Freedom is not inevitable. Historically, freedom is a temporary condition enjoyed by only a fraction of the earth's population.
Since freedom is not inevitable - indeed, the opposite is true; freedom is rare - we must ask, "Why are we free when others or not?"
As a nation (and state) of immigrants, we can't claim we are free because of our genetics. Our nation (and state) is blessed with natural resources, but so is Russia. Wealth does not produce freedom.
In America (and in Nevada), we are free, because our founders recognized that, as Lord Acton stated, "Power tends to corrupt, and absolute power corrupts absolutely" and designed a government with three branches of government. While these branches of government each have different functions, they also have the ability to check the power exercised by another branch.
To ensure that no person or group would amass too much power, the founders established a government in which the powers to create, implement, and adjudicate laws were separated. Each branch of government is balanced by powers in the other two coequal branches: The President can veto the laws of the Congress; the Congress confirms or rejects the President's appointments and can remove the President from office in exceptional circumstances; and the justices of the Supreme Court, who can overturn unconstitutional laws, are appointed by the President and confirmed by the Senate.Because we're so used to this system of government, it's easy to forget how important this system is to ensuring freedom.
Government is needed to secure an individual's right to life, liberty and property. But those wielding governmental power tend to corruption, which harms the very rights government was created to defend.
But using the checks and balances contained within three separate branches of government, you have a system where the tendency of government officials to amass power is checked by other government officials who usually aren't interested in giving up their power.
It's genius.
And it's also why it's so dangerous for one individual to work in two branches of government at the same time. Both the separation of powers and the checks and balances in the system go out the window if one person has authority in two branches of government. Instead of separating power, power is consolidated. Instead of one branch checking another, it could collude with it.
The idea of separating powers is so important that it's explicitly required in Nevada's constitution in Article 3, Section 1.
The powers of the Government of the State of Nevada shall be divided into three separate departments,-the Legislative,-the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others...And that's exactly why NPRI's Center for Justice and Constitutional Litigation has sued Mo Denis, the Public Utilities Commission, and the State of Nevada for violating the separation-of-powers clause in Nevada's constitution.
Even the smallest encroachment in the separation-of-powers clause opens the door for larger and larger encroachments. Hello, Wendell Williams, Chris Giunchigliani, and Mark Manendo.
Once you remove the bright-line standard, it's only a matter of time before incremental "exceptions" render the provision meaningless.
And once you've removed the structural protections against, what James Madison called, "tyranny," you're left with a system of government dependent entirely on the character of its elected officials to keep it free from corruption and abuse of power.
As "power tends to corrupt, and absolute power corrupts absolutely," this is a problem.
Freedom isn't inevitable. Freedom is rare, and we should do everything in our power to protect the form and structure of our government - including a clear separation-of-powers provision - which provided us with freedom.
Read moreWhy separation of powers matters: The story of CCSN, Wendell Williams, Chris Giunchigliani, and Mark Manendo
Last week, NPRI's Center for Justice and Constitutional Litigation sued Mo Denis, the Public Utilities Commission, and the State of Nevada for violating the separation-of-powers clause in Nevada's constitution.
By challenging Nevada's long-standing abuse of the separation-of-powers principle, NPRI's case is the first step in restoring the balance of power in Nevada's government and guaranteeing the liberties of the people.
Full details on the case are available here, but I want to spend some time this week unpacking the phrase "restoring the balance of power in Nevada's government and guaranteeing the liberties of the people."
How is power in government balanced? Why do we have freedom? Is oppressive government really a threat? How does the separation of powers guarantee liberty? What happens - and what problems does it create - when a lawmaker serves in two branches of government?
To start answering that last question, I'd like to tell you about the Community College of Southern Nevada (now the College of Southern Nevada), Wendell Williams, then-assemblyman and city of Las Vegas employee, Chris Giunchigliani, then-assemblywoman and CCSN employee, and Mark Manendo, then-assemblyman and CCSN employee. This story comes courtesy of NPRI's Steven Miller and his excellent Lawmakers vs. the law series.
The record demonstrates that Wendell Williams and other Nevada lawmakers did, indeed, become convinced that they were above the law. As we'll see below, a process is in place that essentially instructs them in this point of view.Guarding against this type of abuse is one reason that Article 3, Section 1, of Nevada's constitution reads:
In the weeks after the reckless-driving stories broke, a seemingly never-ending-stream of additional Wendell Williams scandals began surfacing. If studied closely, those scandals are highly illuminating.
Most titillating to news outlets in 2003, however, were clearly the relationships between Williams and the College of Southern Nevada (CSN), then still named the Community College of Southern Nevada (CCSN).
Williams had shown up in January 2003 at the CCSN president's office with a nubile young woman in tow, one Topazia "Briget" Jones. The college should use some of its public funding to not only to hire her onto its staff, Williams suggested, but to also assign her to work with him in Carson City during the upcoming legislature.
Such a suggestion - given Williams' position chairing the Nevada Assembly's Education Committee and thus controlling any funds that CCSN might hope to get during the session - was clearly unethical, and verged on outright extortion.
But the school's then-president, Ron Remington, and his administrative shadow and top lobbyist, John Cummings, didn't even blink. Neither one, it developed, had any significant qualms - as long as Williams would agree, in turn, to help them circumvent policies set by their bosses within the state higher-ed system.
The board of regents and the system chancellor had decided that CCSN was to remain a two-year institution, while the University of Nevada at Las Vegas would be the home for any new four-year programs. The CCSN conspirators, however, saw the possibility that Williams could get the Legislature to legally order the regents and chancellor to do what Remington and Cummings wanted: abort the two-year CCSN policy and give their school new four-year baccalaureate programs.
As outlined in AB 511, the bill eventually introduced by Williams, the first programs were to be in nursing and teaching. To avoid problems with their higher-ups, both Remington and Cummings repeatedly instructed Williams and Ms. Jones, according to the latter pair, that Remington's and Cummings' "fingerprints" could never appear publicly anywhere near the legislation.
The initial language of AB 511 was supplied by Assemblywoman Chris Giunchigliani, who - ever-so-conveniently - worked under Cummings in the CCSN lobbying and recruiting operation. She later would tell the Las Vegas Sun that when Williams had asked Cummings for a conceptual draft of the bill he and Remington wanted, "I looked at what John wrote and said, 'That doesn't make sense,' and I wrote something up." And indeed, according to legislative records, the initial bill description faxed to Carson City came from the fax machine assigned to Giunchigliani's CCSN office.
Like a coach adding professional ringers to his roster, Cummings had the previous summer hired two state lawmakers at generous, taxpayer-funded salaries. One was long-time Cummings chum Giunchigliani - president of the state teacher union in 1990 when Cummings was executive director and who's now running for mayor of Las Vegas - and the other was Assemblyman Mark Manendo, now a state senator, added to staff in 2002 to supposedly recruit more students to the already overcrowded CCSN campus.
But Cummings' ploy was not at all uncommon. In hiring employees that he could then lobby during legislative sessions - upping the odds that he and his bosses would be given the taxpayers' dollars they wanted - Cummings was following a trail well-worn by the Clark County School District, the Nevada System of Higher Education, Clark County and multiple cities of Southern Nevada.
And here the road leads back to Williams and the nexus between local governments and the state legislature that corrupts public servants by demonstrating to them that, indeed, practically speaking, they are, usually, above the law.
Williams - like Giunchigliani, like Manendo and like Morse Arberry, Williams' long-time colleague in the City of Las Vegas department of Neighborhood Services - had been hired illegally, in direct violation of the state constitution. And no Nevada legal authority or political body had ever even batted an eye, over all the subsequent years.
The powers of the Government of the State of Nevada shall be divided into three separate departments,-the Legislative,-the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others ...This story - and preventing it from happening again - is one of many reasons why it's so important defend the separation-of-powers provision in Nevada's constitution.
Keep reading Write on Nevada this week for more stories on the problems caused by lawmakers serving in two branches of government and answers to the questions raised above.
If there are any questions you would like addressed, please leave them in the comments section.
Buying foreclosed houses is a good thing
There's a story out today about how Sen. Dean Heller's campaign is attacking Rep. Shelley Berkley's husband for ... buying and selling foreclosured homes and trying to make a profit.
Rep. Shelley Berkley's husband has been investing in Las Vegas troubled homes, renting out some but selling two this year for $86,000 profit, according to research circulated this week by Republicans seeking to dent her U.S. Senate candidacy.Well, I'll be the first to admit that I'm not a member of Congress, but it is a great time to flip foreclosed homes. The best part about individuals buying and improving foreclosed homes is that it can be a win-win-win-win-win.
Republicans charge the transactions show Dr. Larry Lehrner to be opportunistic in the search of profits in the midst of Nevada's foreclosure crisis, at a time when Berkley has been highly critical of banks forcing constituents out of their homes.
"How many members of Congress do you think find it a good idea to be flipping foreclosed homes right now? One?" said Mike Slanker, campaign adviser to Sen. Dean Heller, R-Nev., Berkley's election target.
First, the original seller, in this case, the bank, wins, because they've freely chosen to exchange a property for cash.
Second, the new buyer wins, because they've purchased a home.
Third, the neighborhood where the foreclosed house is located wins, because instead of a foreclosure, there's a renovated house. That increases the value of the homes in the neighborhood.
Fourth, homeowners in the general-Vegas area win, because as a basic understanding of supply and demand demonstrates, the more people wanting to buy houses in Las Vegas, the more those houses will be worth.
Fifth, the original buyer and "house flipper" wins - if he or she is able to sell the house at a profit. It should be noted that this individual is actually the one who takes the greatest financial risk, because there's no guarantee that they'll be able to sell the house for more than they've invested.
This process is what Las Vegas needs more of. Aside from being obviously unconstitutional, the biggest problem with the foreclosure mediation program is that it prevents this process from working.
The bank can't sell, because it has to mediate. The new buyer isn't able to buy a home, because it's not available. The neighborhood suffers, because there's a foreclosed home in it. Overall, home values stay depressed, because the above win-win-win-win-win process isn't allowed to clear out excessive inventory, which is necessary for prices to start rising. The investor is denied an opportunity to make a profit.
All of these people are harmed in order to subsidize the individual who caused this problem - the "homeowner" who couldn't or wouldn't make his or her mortgage payments. (I put "homeowner" in quotes, because if they really were a homeowner, foreclosure wouldn't be a problem.)
Now, on a personal level, I sympathize with someone who can't make their house payment and how stressful/horrible that is for them and their family. But personal feelings of sympathy are not a justification to use government action to financially harm other homeowners, future homeowners, investors or even lending institutions. (This is the general problem with liberalism - in seeking to help someone, the unintended consequences of liberal actions make things worse for many others and often incentivize the behavior that's causing the original problem.)
Later in the article Berkley's spokeswoman claims the congresswoman is "second to none" in pursuing mortgage relief for "homeowners."
It's ironic and unfortunate that Berkley doesn't follow the example of her husband, because individuals buying and flipping homes will do more to improve the plight of all homeowners than the increasing governmental interference for which Berkley advocates.
Tomorrow: NPRI's litigation center to announce first case
Needless to say, we're very excited about NPRI's Center for Justice and Constitutional Litigation announcing its first case. And once you find out what the case is on, I think you will be too.
Although numerous (and I mean numerous) individuals have tried to get additional details out of me about what the case will be on, all I can say is that the lawsuit will "challenge the state's long-running violation of vital constitutional principles and will have significant, statewide implications for all Nevadans."
Full details will be available tomorrow after 11 a.m. at http://justice.npri.org/.
In the meantime, here's our media advisory.
NPRI's litigation center to announce first case at press conference
CARSON CITY, Nev. - The Nevada Policy Research Institute's Center for Justice and Constitutional Litigation will file its first case in Nevada State Court on Nov. 30, 2011. The suit, to be filed in the First Judicial District in Carson City, will challenge the state's long-running violation of vital constitutional principles and will have significant, statewide implications for all Nevadans.
Immediately following the filing of the suit at 11 a.m., Joseph Becker, Chief Legal Counsel and Director of CJCL, will speak briefly about the case and answer questions regarding the filing of the lawsuit and its implications.
When: Wednesday, Nov. 30, 2011 at 11 a.m.
Where: First Judicial District Court
885 East Musser Street
Carson City, NV 89701
The Center for Justice and Constitutional Litigation is a public-interest law organization that will litigate when necessary to protect the fundamental rights of individuals as set forth in the state and federal constitutions.
Learn more about the Center for Justice and Constitutional Litigation at http://justice.npri.org/.
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Why the Pilgrims rejected socialism and embraced free enterprise
Happy Thanksgiving everyone!
Enjoy this history lesson on how the Pilgrims rejected socialism and how their embrace of freedom and free markets enabled them to succeed as a society.
Just another great example of how individuals working in a free market expand the economic pie.
Chris Christie: Why taxing the rich won't help the poor
What am I thankful for this Thanksgiving? This video from Gov. Christie explaining why you can't make the poor richer by making the rich poorer.
Great stuff - especially when he talks about how individuals acting in a free market expand the economic pie.
As I've written before:
The unstated, underlying economic assumption that many leftists make is that the rich have to pay their "fair share," because the rich are wealthy only because they have taken from society or the poor and that government must right that wrong through taxes or "spreading the wealth around."The rest of that blog post, including proving that you and I are wealthier than John Rockefeller was, is here.
Nothing could be further from the truth.
What's amazing about free-market capitalism is that the way you get rich is by meeting the needs of other people and making their lives better. Generally, rich people are those who've created the most wealth or value for other people. They've grown the economic pie.
This idea of creating wealth is critical. If you think the amount of wealth in the world is limited, it might make sense for government to take from the rich and give to the poor, because the economic pie is finite and if someone has more, than someone else has less.
But that's not the way the world is. The amount of wealth in the world is rapidly increasing.
Video: Why we shouldn't bail out student loan borrowers
Great stuff from ReasonTV.
ReasonTV touches on this in its video, but let me highlight a "progressive" reason to oppose student loan bailouts - the government would be taking from the poor and giving to the rich (the unemployment rate is lower for college graduates and they generally earn more than non-college graduates).
Now, I don't think we should bail out anyone, but it's truly ironic to hear leftists advocate taking from the poor and giving to the rich.
(h/t HotAir)
Edit (11/22/2011): Corrected grammar errors.
Actual good news: Legislative panel looking to eliminate state boards
Ronald Reagan once said, "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!"
There's a lot of truth in that statement, which is why it's so encouraging to see the legislative sunset commission actually talking about eliminating up to 35 state boards and commissions.
During the first meeting of Legislature's Sunset Subcommittee, members identified the boards and commissions they want to call in and ask to provide justification for their continued existence.Sen. Kieckhefer should be applauded for his work on this issue.
Some such as the Commission on Sports have not met in decades and clearly will be abolished. ...
The Sunset Subcommittee was created through a bill sponsored by Sen. Ben Kieckhefer, R-Reno. Approved unanimously and signed by Gov. Brian Sandoval, the law allows the subcommittee to determine whether boards or commissions "should be terminated, modified, consolidated with another agency or continued." ...
The subcommittee's recommendations are due June 30 and on the same day every other year.
Any recommendations made next year must be approved by the Legislature in 2013 before a board can be eliminated.
Let's hope that in 2013, lawmakers continue eliminating inefficient areas of government.
Hilarious video: Daily Show destroys Occupy Wall Street
Amazing. A devastating and funny critique of the "Occupy" protests.
In more local news, Occupy Las Vegas has been busy as well. After OLV split into two camps, an Occupy Las Vegas member vandalized a news van last week, and today, 21 members of Occupy Las Vegas decided to show they're serious by sitting down in the middle of the street and getting arrested.
When they were ready to disperse at 10 a.m., 21 of them stepped into the northbound lanes of the street and sat down. Police got them up, loaded them into a paddy wagon and cited them away from the site.If the Daily Show ever wants to take a road trip, I think interviews with Occupy Las Vegas would provide plenty of material.
Video: Andrew Biggs' presentation on NV PERS' $40 billion unfunded liability
On Tuesday, NPRI had the privilege of hosting a luncheon talk by Andrew Biggs, a public-pension expert at the American Enterprise Institute. Biggs recently wrote an excellent study on Nevada's PERS system, which found that PERS has an unfunded liability of $40 billion.
Bigg's talk was excellent and contained a wealth of information. Enjoy.
