ORL Supports the Constitutional Separation of Governmental Powers

The issue. In the Constitution, our nation’s founders codified the genius of separating powers between governmental branches as the key to avoiding tyranny and nurturing freedom.  For this innovative, republican system to work, each of the branches must protect its core powers zealously and not allow its powers to be co-opted by any of the other branches.  In doing so, each of the branches checks the other in an ingenious defense of our individual freedoms. 

The system only works well when each of the branches exercises its prerogatives aggressively, generating a creative tension with the other branches that achieves a healthy equilibrium.  A certain ebb and flow in the balance of powers between the executive, legislative, and judicial branches is to be expected and has been witnessed at different parts of our history, but there has never been this kind of sustained, relentless assault on the constitutionally protected separation of powers.  When one of the branches seeks relentlessly to discredit the others and either of the other branches does not resist in order to generate the needed creative tension, the constitutional strictures wither and leave an invitation to metastasizing autocracy.

Currently, the executive branch of our government is misappropriating core legislative powers as its own and then attacking judicial officers relentlessly if they make textually based decisions that seek to restrain the executive to the powers outlined in the Constitution.

While lower courts have bravely tried to restrain the executive branch from undermining the separation of powers, the Supreme Court has too often allowed the executive branch – at least temporarily – to exercise core legislative functions through the misuse and abuse of its emergency docket.  The checks and balances our founders built into the Constitution through the separation of powers are under attack and at times failing the American people when they are needed most.

James Madison, with help from Alexander Hamilton, produced a whole series of Federalist Papers entitled “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.”  In these papers, Madison argues that tyranny will be avoided only if the three branches of government exercise their own core powers, with checks on excess being provided through limiting powers provided to the other two branches.  For instance, Congress passes laws, but the President can veto them. 

Courts say what the law is, but Presidents appoint and the Senate confirms judges.  Presidents execute the laws, but Congress has the power of the purse, and judges can check overreach through their interpretations of the law.  Central to the checks and balances provided by the separation of powers is that each branch defends its right to exercise its core powers. 

In the words of James Madison in Federalist Paper 48, “it is agreed on all sides, that the

powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident that none of them ought to possess, directly or indirectly an overruling influence over the others, in the administration of their respective powers.” 

Madison explicitly addressed the invasion of another branch’s core powers in Federalist Paper 51, proclaiming: “But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”  Madison began Federalist 51 by capturing the essence of the separation of powers: “The only answer that can be given is… by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places … In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own.”

Checks and balances through the separation of governmental powers under our Constitution is a fundamental principle that not only ensures a nation under the Rule of Law, but also one that is designed to protect our basic rights and freedoms as citizens.

The Trump Administration is categorically and repetitively encroaching on legislative powers through executive orders and administrative actions that clearly cross the line into Congressional exercises of power.

Consider the recent examples of recent Executive power grabs at the expense of the other co-equal branches of government that undermine fundamental checks and balances.  Since he assumed office in January, the President has unilaterally and illegally imposed tariffs without the consent of Congress.  He has undermined Constitutional and civil rights, as witnessed by his lack of respect for the due process rights of immigrants and seeking personal retribution on officials from his first administration who he now considers his political “enemies.”  He and his appointed officials have eliminated critical foreign policy agencies such the U.S. Agency for International Development (AID), decimated vital intelligence capabilities, and undermined vital public health agencies like the Center for Disease Control (CDC) in violation of Congressional authorizations and without prior Congressional consent.  He has unilaterally eliminated vast swaths of federal employees, including inspector generals and department ethics officers.  He has threatened to fire more during the government shutdown.  He fired the heads of the Defense Intelligence Agency and Bureau of Labor Statistics because he didn’t like the factual reports they presented to him.  He is now trying to fire a governor of the Federal Reserve without cause on a pretext prior to her term’s end date.  He has deployed U.S. military forces and state national troops trained to fight our wars and defend our nation from foreign enemies to patrol local neighborhoods to deter local crime and even pick up trash in cities that did not request his help.

The cumulative impact of these and other executive encroachments constitute the most serious threat to, and the most rapid means of,  neutralizing the operation of the separation of powers enshrined in our Constitution since its ratification.

ORL policy position. ORL supports and will defend our Constitution.  We believe in the wisdom and benefits of the separation of powers within our federal government.  We stand for the Rule of Law under the Constitution, which binds our diverse nation together today just at it did when it first defined and empowered our enduring system of government in 1788.

Action required. ORL recommends four actions that can be taken to reaffirm and ensure the separation of governmental powers that our Constitution requires.  All American citizens should demand them regardless of political affiliation or ideology.

1. Congress must not succumb and surrender to the President’s political will and threats.  Congress should not accede to, or collude with, the President at the expense of the American people and our Constitutional rights.  Congress must reclaim its full authority under Article I to not only enact the common-sense laws we need, but also conduct legitimate and full oversight of the questionable actions of the Executive branch, especially where the President’s reach exceeds his Constitutional powers (e.g., unilateral tariffs, abolishing agencies and firing officials without justifiable cause, using military forces to police civilians, undermining public health).
   

2. The President must cease and desist from his unilateral assertion of Executive power in clear violation of Article II of our Constitution at the expense of the legislative branch – the Congress – which is charged with making our laws.  The President should focus on enforcing the laws the Congress passes and not exceed his legal authority to pursue his personal, financial, and extreme political agendas.
   

3. The Supreme Court must uphold its mandate under Article III to interpret enacted law and avoid getting embroiled in purely political debates.  The Supreme Court must also take the lead in vigorously defending the rule of law and U.S. judicial system, including defending justices and judges from veiled threats and disparaging attacks made by the President, which puts their lives at risk.  The Court should avoid using its emergency docket to provide the President with even temporary cover for actions that in the end should and will be found to violate the Constitution.
   

4. Finally, all Americans have rights and responsibilities under the Constitution to peacefully hold elected public officials to account for their actions with their voices and their votes.  All citizens must recognize their responsibility to ensure good government that flows from the separation of powers and protects their rights and freedoms under our Constitution.  Americans should be brave in exercising their constitutionally protected First Amendment rights to object to governmental overreach and misdeeds.