Continued from Part 2, How to restore separation of powers
But the separation of the national government’s powers across different branches does not mean isolating those branches. For instance, Congress can check the president’s executive power by refusing to fund it, or in the foreign-affairs realm, by refusing to ratify treaties. Or the Senate can check the president’s power to staff the executive branch by refusing to give its consent to officers who need Senate consent. The president can check Congress’s exercise of legislative power by vetoing any legislation, which requires a two-thirds congressional majority to override. And the judiciary can check the other branches by declaring their actions in violation of the law, with the other branches able to check the judiciary by legislatively overriding judicial decisions or through gradually changing the composition of the courts via appointments.
There are reasons we have wandered from the protective barrier of the separation of powers. The Supreme Court’s unwillingness to challenge the president and Congress’s collusion in creating the administrative state, for example. Another is that the branches have given up many of their constitutional prerogatives to check each other. Congress refuses to use its power of the purse, or passes legislation without even attempting to debate and determine whether it is constitutional, instead leaving it up to the courts to figure that out — a far cry from the practice of the first Congresses. Similarly, the president signs bills that he doubts are constitutional, content instead to outsource his constitutional judgment to the judiciary. And the judiciary will sometimes (though not often) bend over backwards to defer to the other branches. This is a clear departure from the Constitution’s original design in which, as Madison observed in The Federalist No. 51, “ambition [was] made to counteract ambition.”
Relatedly, the branches, most often Congress, are content to let others do their work. Most laws enacted these days are not statutes, but regulations promulgated by the untold number of executive agencies that oversee and direct nearly every facet of American life. Political scientists posit that the main goal for members of Congress is to win re-election. Legislators do not increase their odds in the next electoral cycle if they vote on controversial issues that enflame 40 percent of the electorate no matter what they do, or if they choose difficult, scientific, technical, or economic policies that might prove mistaken. They are better off delegating those choices to the agencies or the courts, concentrating instead on bringing federal dollars back to the home district, and blaming the president when things go wrong. A Supreme Court that affords agencies greater deference and more freedoms will only exacerbate the failure of the Constitution’s original self-checking mechanisms. In sum, every branch seems to flee from President Harry Truman’s famous aphorism “The buck stops here.” And this results in the republic slouching toward the very thing the Founding generation feared: an “accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective,” which “may justly be pronounced the very definition of tyranny.”
Restoring the separation of powers, in the law as well as in the minds of the government and of the people, would avoid the need for some of the most controversial cases that have come before the Supreme Court in recent years. Take religious-liberty cases such as Hobby Lobby and Little Sisters of the Poor — both were challenges to the regulations passed by agencies, not laws passed by Congress. Or this term’s Gundy v. United States, in which Congress had delegated to the attorney general the question of whether the law required certain sex offenders to register with the government. Imagine — the branch of government authorized to enforce the law is the same branch permitted to determine the content of the law. As Montesquieu long ago warned, “When the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty.”
In short, the separation of powers is not just about the separation of powers. It’s also about religious liberty, free speech, due process, and every other liberty the Constitution protects and all those not enumerated within its text. We have a Bill of Rights Day. But to really celebrate the liberty the Constitution provides, maybe we should have a Separation of Powers Day. And the Court, which has done much of the damage to the separation of powers over the years, can begin restoring that most fundamental part of the Constitution.
President Trump’s vigorous attacks on Mueller’s investigation, including threatening to fire the special counsel, may harm his own political self-interest. But in flexing his executive muscle, the president is defending the Constitution’s original meaning and its liberty-protecting separation of powers. And that’s something, whatever their politics, all Americans should welcome.
— John Yoo is the Emanuel S. Heller Professor of Law at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. James C. Phillips is an attorney in private practice and a non-resident fellow at Stanford Law School’s Constitutional Law Center.
More from National Review
The Law Will Be on Trump’s Side If He Declares an Emergency to Fund His Wall
Restoring the Indispensable Protection for Liberty
The Coming SCOTUS Battle Is a Chance to Curb Judicial Supremacy
Continued from Part 2, How to restore separation o... (
show quote)