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Separation of Powers: A Critical Evaluation - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Separation of Powers: A Critical Evaluation

Since 1789, when the First Congress convened, the executive branch has tended to grow in power, even during the administration of Presidents who professed to respect the legislative branch.

The judiciary, ever since John Marshall became Chief Justice in 1801, has tended to be much more assertive of its powers than the Framers had expected. (Alexander Hamilton, writing in The Federalist, assured his readers that the Supreme Court, “the weakest of the three branches,” could take “no active resolution whatever.”) Today, Federal courts examine and review Congressional enactments and presidential orders far more frequently than the Framers imagined.

Congress, though meddling little with the judiciary since the first decade of the nineteenth century, has bitterly attacked Presidents from time to time, often out of partisan motives. What is even more destructive of balanced government, Congress has delegated to a multitude of Federal regulatory commissions and administrative bodies major powers that, under separation of powers teaching, ought to be retained jealously within Congress. Indeed, some critics argue that it is chiefly from governmental commissions and agencies that the principal threat to citizens’ rights comes today—not from old-fangled oligarchs and tyrants.

Over the years, certain misconceptions about the American doctrine of separation of powers, and criticisms of the system, have surfaced from time to time in writings on American politics. The assumption is often made, for example, that the Constitution established three “equal” or three “coordinate” branches of government. Such is not the case. As Madison observed in Federalist No. 51, “it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.” Experience under the State constitutions had shown, he explained in Federalist No. 48, that “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.”

Moreover, the constitutional powers of Congress are “more extensive and less susceptible to precise limits,” and Congress “can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments.” The executive power, on the other hand, is “restrained within a narrower compass,” and the judiciary’s powers are even more uncertain. “Projects of usurpation by either of these departments would immediately betray and defeat themselves.” Not to be overlooked, added Madison, is the fact that “the legislative department alone has access to the pockets of the people,” which gives it the power to reward and punish those who serve in the other branches.

In theory, at least, Congress has the constitutional authority to lord over the other branches. An angry House and Senate might, if it wished, reduce the entire Federal Judiciary down to one Supreme Court, with only the Chief Justice, exercising only limited, original jurisdiction. A legislative assault on the executive branch would be equally devastating, leaving the President with no cabinet, no departments, no army or navy, and no funds. All of this is possible because the other branches rely almost exclusively on Congressional statutes for their operation.

There are numerous examples of legislative encroachment, as witnessed, for example, by the impeachment of President Andrew Johnson. There have also been periods of legislative ascendancy, which Woodrow Wilson complained of in his book, Congressional Government. Throughout most of American history, however, Congress has probably exercised more restraint than the Framers anticipated. That an unruly Congress always has the potential of tyrannizing over other branches is a factor that should always be kept in mind, however; and it should also be emphasized that the main reason for the separation of powers and checks and balances system, as the Framers saw the problem, was to protect the executive and judicial branches against the legislative. This is not to say that the Framers overlooked the possibility that the President or the Supreme Court might also abuse their powers, but merely that in 1787 they seemed to lack the inclination and capacity.

It is true, of course, that all three branches have become far more powerful in the twentieth century than the Framers ever thought possible. The growth of Federal power, however, has been largely at the expense of the States, and the growth of presidential and judicial power has come about through the acquiescence or approval of Congress. The Congress is still the fountainhead of power, and the hub of the system. In the final analysis, there is practically no constitutional controversy or problem that Congress (and to a lesser extent the States through the initiation of amendments) cannot ultimately resolve, if it has the will to do it. Neither the President nor the courts can make this claim. Constitutionally speaking, therefore, Congress is the most powerful branch, but in practice it does not always assert itself and at times may even be overshadowed by the President or the Supreme Court.

Today, as in 1787, the separation of powers doctrine is venerated and praised as the mainstay of the Constitution. It has never been targeted for attack by any political reform movement and has traditionally enjoyed a broad consensus of support among the American people. But it has not been immune from criticism. From time to time there have been outcries of disappointment and frustration because the American political process does not always respond immediately to every call for action. Some critics have charged that separation of powers weakens the Federal government, and that the built-in tension and conflict among the branches produces political paralysis. In today’s world, they argue, where the United States is embroiled in one global crisis after another in the seemingly endless struggle against terrorism and war, a more harmonious relationship between the President and Congress would allow the United States to act with greater certainty and dispatch.

It is true, of course, that the separation of powers slows the pace of government. More than once the United States Senate has blocked a treaty signed by the President. Congress and the President share the war and diplomatic powers and are not always of one mind on military and foreign policy. The Supreme Court has occasionally intervened, as in 1952, when the Justices ruled in the famous Steel Seizure Case that President Truman had exceeded his powers when he endeavored to prevent a nationwide strike in the steel industry by taking possession of the mills.

Speed, however, is not a virtue in the political process crafted by the Framers. The system is intended to promote careful deliberation, which is time-consuming, to be sure, but necessary to build a consensus so that the decision finally made has broad support. The Framers believed also that the deliberative process increases the likelihood that the policy finally adopted will be a wise one. Hasty decisions are often foolish decisions. Debate and negotiation have the salutary effect of cooling tempers and correcting mistaken views and false impressions. Compromise means that a variety of conflicting interests have some voice in public affairs; and without this complicated check and balance system, minorities of every description—property holders, rural folk, religious sects, racial and ethnic groups, certain occupations and professions, whole regions of the country—would be at the mercy of an unrestrained Congress, President, or Supreme Court. Separation of powers protects the American citizen against overbearing majorities as well as entrenched minorities.

The claim that separation of powers weakens government is equally unpersuasive. It is abundantly clear from an examination of the Constitution and a review of The Federalist that the national government was to be a strong government, with the power to fulfill the obligations placed upon it and the means to carry out those obligations. Separation of powers was designed not to emasculate the powers of government, but to give some assurance that they would not be exercised in an oppressive way. Preventing the aggrandizement, usurpation, and abuse of power is not the same as preventing the exercise of lawful power. There is no pattern of evidence that the separation of powers has prevented the United States from dealing with foreign aggression or domestic crises in a timely and efficient manner. Of the many examples that have been offered in defense of separation of powers, however, none is more convincing than the twentieth-century spectacle of totalist governments misruling more than half the world. The concentration of ruthless power in the hands of fanatical and half-mad rulers—often in the name of “liberation” or “people’s democracy”—has resulted in a degree of human misery that even the worst government of the eighteenth century would have regarded with horror.