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Separation of Powers

5 min read

Part of The Constitution and the courts.

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Every episode (7)

Who argued it

Philip Hamburger · Daniel Dew · Glenn Roper · Keith Whittington · John Marini · Ilya Somin · Frank Buckley

Constitutional Law · Supreme Court · Administrative State · Court Packing · Judicial Review · COVID-19 Lockdowns · Economic Liberty · COVID-19

Background

The Founders’ design and its inversion

Frank H. Buckley told Bob Zadek that the Founders, lacking any model other than Britain, built something like a parliamentary system with a president in place of a king, chiefly to ensure the president would not have the power George III had had. What they designed, Buckley said, was something we would probably call congressional government today; they expected the House of Representatives to appoint the president, and they imagined the president executing laws the way one assembles an IKEA desk from its instructions, without broad discretion. Buckley argued that the idea of a balanced constitution and a separation of powers was to prevent the accumulation of powers, but that it now has the opposite effect: when there is gridlock, the argument is made that the president has to act because nobody else can, so the separation of powers ends up empowering a president and concentrating power in a single person, just the opposite of what was intended Has America Become an “Elective Monarchy”? (2014).

Abdication and the dangerous branch

On immigration, Bob Zadek framed the tension between a muscular executive and Congress as a failure of Congress: the president, whoever it is, has found it necessary to deal with the problem because the duty to enforce the laws faithfully cannot be performed when the laws are impossible to execute faithfully. Alex Nowrasteh said Zadek was being too lenient, arguing that Congress has abdicated its constitutional responsibility since the 1920s by writing laws that leave the president to figure out enforcement, and that the immigration code explicitly grants powers such as the travel ban and the reallocating of Border Patrol resources. Nowrasteh called this an unconstitutional abdication that violates the separation of powers doctrine, and said he had come to regard the executive branch as the most dangerous branch of government What Part of Illegal Immigration Are You Against? Alex Nowrasteh Returns (2019).

Madison’s definition of tyranny

Bob Zadek opened an episode by quoting James Madison: the accumulation of all power, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny. Zadek said that describes how people are living in many states, with all powers accumulated in the hands of governors, mayors, county executives and health department officials who have received delegated authority and dictate whether people can earn a living. He called the separation of power the core structure of state, local and federal government, and said that once we lose it we become subjected to tyranny The Mini-Administrative State (2020).

Glenn Roper, a litigator with the Pacific Legal Foundation, told Zadek that separation of powers is a fundamental American idea and ideal, and invoked Justice Antonin Scalia’s insistence that the foundation of our freedom is not the Bill of Rights — every tin-pot dictator has a Bill of Rights — but the structure of government, the checks and balances between the branches. Roper described the legislative branch with Congress, the executive branch headed by the President, and the judicial branch, with push and pull and boundaries between them. Zadek added that the Founders acknowledged no single group of elites knows better than others how life should be organized, and that pitting political groups against one another produces collective wisdom better than any single branch; when the separation disappears and power collects in the executive alone, bad decisions follow The Mini-Administrative State (2020).

Roper said every state has the same kind of separation of powers, and that the Founders, having just come out of the war against England, were not unfamiliar with emergencies; there is no general emergency exception, but legislatures enact laws granting measured emergency powers with restrictions and limitations. The problem, he said, is that the limits are not being respected, which erodes the separation of powers and the checks and balances The Mini-Administrative State (2020).

States, courts and who decides

Jeffrey Sutton told Zadek that separation of powers happens to be so important because if you do not place some limits on governments, at the state or federal level, you start to defeat the framers’ insight that separation of powers is the way to protect liberty by avoiding the aggrandizing of too much power in one place. Sutton, drawing on Justice Brandeis’s metaphor of states as laboratories, argued that new debates about liberty, equality and property rights should let state courts be first responders under their state constitutions, rather than a race to the United States Supreme Court for a winner-take-all victory Who Decides? (2022).

Across episodes

The topic is touched in the episodes on elective monarchy, the legitimacy crisis, illegal immigration, the administrative state, and who decides; the episodes show no development between the earlier and later treatment, with Buckley, Nowrasteh, Roper and Sutton each advancing a distinct application of the same structural argument.

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