January 01, 2018 Volume 18 Issue 1

The Separation of Powers Today

by Jean Galbraith

In the early 1980s, the Chinese leader Deng Xiaoping indignantly complained to the U.S. secretary of state about a federal court decision involving a Chinese aircraft. He asked the secretary of state to tell the judge to change his ruling. The secretary of state declined, explaining that this would violate the separation of powers. “Well, what is the separation of powers?” asked Deng Xiaoping. The secretary of state responded: “I’ll send my lawyer to explain it.”1

What is the separation of powers? Unlike Deng Xiaoping, we all know the traditional American answer. The framers of the Constitution divided power between three branches of the federal government: Congress to make the laws, the president to execute the laws, and the courts to pass judgment. Each branch is supposed to keep a watchful eye on the other two. As James Madison wrote in The Federalist, “the greatest 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 encroachment of the others.”2

In the 230 years since the Constitution’s drafting, this three-branch system of checks and balances has aged, and not altogether gracefully. Congress is often dysfunctional, and the courts self-consciously limit their own reach. By contrast, the executive branch has accrued more and more power over time. Concerns about unbridled presidential power abound. These concerns are all the greater when we have doubts about the character of the men—so far, all men—who hold the office of the Presidency.

Yet for those worried about presidential overreach, there is good news as well, for other checks on presidential power have developed in the meantime. One powerful check is public opinion, which in turn owes much to the freedom of the press. But there are other checks too, ones embodied in institutions that wield legal as well as political power. With regard to foreign affairs, other nations and international organizations have tools for checking the power of the U.S. president. On the domestic front, states, cities, and counties can push back against executive branch action. And even within the executive branch itself, administrative law and bureaucratic structure place limits on what the president can accomplish. These checks are not all ones that the framers foresaw, but they further James Madison’s vision of disaggregated authority. Any conversation about the separation of powers is incomplete without them.

The Imperial Presidency?

The rise of presidential power owes much to congressional action and inaction. Because the framers failed to foresee the party system, they did not realize how it might hinder Congress’s ability to act as a check on the president. Where they share a party affiliation, members of Congress will typically view the president as an ally and may therefore be unwilling to curtail his or her power. As for members of Congress who do not share a party affiliation with the president, they will find it difficult to pass any legislation, let alone legislation that restricts presidential power. Because of the president’s veto power, Congress needs two-thirds majorities in both houses to pass any legislation to which the president objects. Such supermajorities require bipartisanship. This can sometimes be obtained: Congress’s recent bill bringing new sanctions to bear on Russia, Iran, and North Korea had such strong bipartisan support that President Trump reluctantly signed it into law, thus avoiding a veto override. Yet major legislation that meaningfully restricts presidential power is very hard to pass.

Not only does Congress usually fail to check presidential power, but it often acts to enhance it. As recent years have shown vividly, Congress has difficulty passing major legislation. When such legislation does get passed, it typically delegates a great deal of authority to the president and other executive branch officials. By way of example, the Clean Air Act and the Clean Water Act instruct the Environmental Protection Agency (EPA) to pass regulations that protect our air and water, but these statutes leave the EPA with considerable discretion to determine what it will regulate and when it will do so. Such delegations are appealing to Congress for several reasons. As a matter of process, they enable Congress to capitalize on ambiguity, avoiding difficult decisions that might otherwise make the legislation impossible to pass. As a matter of substance, they provide flexibility that is functionally needed for governance. And once passed, these statutes will linger for years, as their revision or repeal proves hard to obtain.

Over time, presidents have come to fill the void left by Congress. Some presidents have done this with enthusiasm, some with seeming reluctance, but the end result is one of greater presidential power. And the more presidents wield asserted power, the more precedents exist to justify presidential action as a matter of law. The Constitution gives Congress the power to “declare war,” yet presidents have ordered military action in Korea, Vietnam, Grenada, Kosovo, Libya and many other places without explicit congressional authorization. The Constitution instructs the president to obtain the advice and consent of two-thirds of the Senate for treaties, yet major international agreements like the Paris Agreement on climate are now made without legislative approval. With respect to immigration, President Obama and President Trump have pursued very different policies but both have at times interpreted immigration statutes in ways that maximize their authority and flexibility.

The rise in presidential power vis-à-vis Congress has grown largely unchecked by the courts. Not all actions that enhance presidential power are challenged in court. And for those challenges that do exist, success is only occasional. A court may dismiss such challenges without resolving them, as where it concludes that the plaintiff lacks standing, the case is unripe, or the issue is a non-justiciable “political question.” And when a court does adjudicate a challenge to presidential power, quite often the president will win. There are real advantages to presidential power, especially since the alternative can be ineffective governance or no governance at all.

That Congress and the courts have tolerated the rise of presidential power does not mean that they are entirely without means of resisting it. Congress can act in extreme circumstances. In the wake of Watergate, the threat of impeachment led President Nixon to resign, and Congress also passed several important laws aimed at limiting presidential power. In addition, congressional committees exercise considerable soft power through their ability to investigate executive branch action and publicize their findings. The courts similarly have considerable power at their disposal, should they choose to exercise it. Perhaps the most famous Supreme Court opinion on the separation of powers, Youngstown Sheet & Tube Co. v. Sawyer, denied President Truman the power to seize the steel mills from their owners in order to prevent a strike that might have hindered the war effort in Korea. In his separate opinion, Justice Robert Jackson wrote that “I cannot be brought to believe this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress. But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems.”3

Checks and Balances beyond the Three Branches

The president’s power has grown beyond what the framers envisioned. But so have other checks on presidential power—checks that are distinct from Congress and the courts. The complexity of the modern world has given rise to institutions that the framers did not foresee, like the international legal super-structure and the federal bureaucracy. These institutions enhance the reach of presidential power, yet at the same time they restrain or channel this power through their foundational laws. Other institutions that existed at the time of the framing, such as states, cities, and counties, have developed new means of resistance to presidential power. Collectively, these institutions serve as checks on presidential power. Aside from states, their roles are not directly provided for in the Constitution, but they are now deeply embedded in the practice of governance. These institutions will not entirely prevent all abuses of presidential power; indeed the potential for abuse can never be fully eradicated from a system whose effectiveness depends on a large degree on presidential power. But these institutions can nonetheless limit the scope and effects of presidential power.

On the international stage, the United States and other major world powers are bound together through an alphabet soup of institutions, including the United Nations, the World Trade Organization, the International Monetary Fund and regional arrangements like the North Atlantic Treaty Organization. If a President wants to pursue strong collective action, then he or she will need buy-in according to the legal rules that underlie these organizations. The need for cooperation thus limits the scope of what the president can do. President Obama joined the United States to the Paris Agreement without getting the approval of Congress or the Senate—but only after years spent crafting an agreement that was acceptable to almost every nation in the world. Of course, there are foreign policies that the president can pursue that do not involve international cooperation, such as unilateral uses of force and withdrawals from international agreements. But such policies may make international cooperation harder to obtain on other fronts.

Within the executive branch, the federal bureaucracy carries out the president’s orders, but it can also shape the content of these orders or resist their implementation. To give a recent example, the military initially declined to implement President Trump’s tweet announcing a ban on military service by transgendered persons, emphasizing that such a step needed to be formally communicated through the chain of command. When this formal communication took place, it left space for the prospect of less sweeping measures than suggested by the original tweet—a change that may well have owed something to internal pushback by the military. And even where political appointees identify closely with the views of the president, they may be limited in what they can do. President Trump’s EPA director may wish to modify or repeal many regulations regarding environmental protection, but administrative law requires that he do so through a public notice-and-comment process and in a way that is neither arbitrary, capricious, nor inconsistent with the underlying laws. His ability to do this successfully will depend in turn on the work done by career civil servants, who can potentially stall the process or conclude that what they are asked to do is not within the scope of existing environmental laws.

States, cities, and counties also have institutional power that can amplify presidential power or counter it. The framers of course recognized the importance of state governments, but they did so primarily by seeking to limit what kinds of issues the federal government could address. But as the lines between what is of local interest and what is of national interest have blurred, the executive branch frequently finds itself dealing with issues that are also of interest to state and local governments. Where states, cities, and counties disagree with executive branch actions, they can voice their objections and often engage in substantive resistance as well. When President Trump announced the future withdrawal of the United States from the Paris Agreement, several states and numerous cities immediately pledged to continue abiding by it.

These different institutions can reinforce each other, and Congress and the courts, in checking presidential power. For an example, consider President Trump’s initial travel ban on non-citizens coming from seven Muslim-majority countries. It generated immediate resistance from within the federal bureaucracy, including one high-profile resignation. Following inter-agency consultation, its scope was soon announced to be narrower than it sounded, such that it did not exclude lawful permanent residents from entering the country. Several U.S. states then took the lead in challenging this ban in the courts. In ordering the travel ban to be suspended, federal courts took note of the initial breadth of the order and the lack of evidence justifying it. The Trump Administration then issued a revised, narrower executive order. This order was similarly been challenged in court by U.S. states, and the Supreme Court scheduled argument on the issue in the fall. This argument has since been postponed, as the second travel ban has been at least largely superseded by a third travel ban, which itself will doubtless face court challenge. Whatever the ultimate result of this case, it demonstrates how actors within the executive branch, states, and courts can all push back against presidential policy decisions.

As this discussion suggests, the separation of powers today spreads out well beyond the traditional three branches. The resulting network is not a perfectly satisfactory shield against presidential overreaching. Most notably, it protects only weakly against abuses of the most important power of them all—the power to use force abroad. Here neither Congress nor the

courts currently serve as strong checks, the international legal order is fragile, the federal bureaucracy is especially deferential to the commander-in-chief power, and sub-national governments have little role to play. But outside of this important context, a diffuse web of checks and balances places substantial limits on the power of the president.

1. This incident is recounted in MICHAEL P. SCHARF & PAUL R. WILLIAMS, SHAPING FOREIGN POLICY IN TIMES OF CRISIS: THE ROLE OF INTERNATIONAL LAW AND THE STATE DEPARTMENT LEGAL ADVISER 44 (2010). The State Department’s lead lawyer was indeed sent to brief Chinese government officials on the U.S. separation of powers. Id.

2. THE FEDERALIST No. 51, at 318-19 (James Madison) (Clinton Rossiter ed., 1961).

3. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952) (Jackson, J., concurring).