Reinterpreting the Separation of Powers

David J. Siemers

With dysfunction the current watchword in American politics, the public is naturally looking for solutions. The checks and balances offered by three coequal branches of government are the remedy most frequently advanced for this task. But we should exercise caution in endorsing this idea as a cure for our political ills.

 

While there is no doubt that the branches share some powers, the language we use in touting checks and balances is fundamentally flawed. It mischaracterizes the extent to which powers are shared, as well as the reason why they are shared in the first place. I argue that it is a mistake to believe that we have coequal branches of government. This misunderstanding has contributed greatly to our current political dysfunction. Restoring working governance in the United States requires reconceptualizing the desired relationship between the branches as a separation of functions.

Politicians, teachers, media authorities, and the public frequently describe American government as consisting of three coequal branches. In most cases this is noted as a truism, an off-hand remark to be believed without any real thought. The unstated assumption is that the equivalence referred to is one of power. The implication is that when any one branch objects to the plans favored by the others, that branch has the power to stymie them. This is the vague but strongly held understanding of checks and balances that presently approaches consensus in the United States.

The problem with this truism is that it fundamentally resets the nation’s constitutional structure. The American founders did not set up a consensus-oriented government where all institutions needed to agree to take any concerted or forceful action. On the contrary, the founders were trying to escape a consensus-oriented regime. The Articles of Confederation handcuffed the national government for a decade. The founders knew better than to require the agreement of all its institutions on any particular decision.

The Founders did not set up a consensus-oriented government where all institutions needed to agree to take any concerted or forceful action. They were trying to escape a consensus-oriented regime.

Additionally, the founders frankly acknowledged huge disparities of power between branches. The Federalist was entirely orthodox in insisting that “in republican government the legislative authority necessarily predominates.” That was James Madison, writing in essay #51. In Federalist #78, Alexander Hamilton observed that “the judiciary is beyond comparison the weakest of the three departments of power.” If the United States government consists of three coequal branches, no one bothered to tell the authors of the Constitution.

Subsequent generations did not understand the federal government to be set up in this way either. In fact, the understanding that there are coequal branches is of recent vintage. This late view is based on a mischaracterization of what the founding generation did believe and did set up: a government with three equally legitimate branches where each has an equal right (and an equal duty) to exercise the specific constitutional powers granted to it. Prior generations occasionally noted the branches’ equal legitimacy, but never their equal power.

Enterprising political actors are skilled at promoting ideas that suit them, however. And that is precisely what happened to our understanding of the Constitution’s separation of powers. The term coequal, as well as the idea of checks and balances, was repurposed to suit presidents aiming to bolster their own claims to power. Curiously, it was not the “usual suspects”—Woodrow Wilson or Franklin Roosevelt—who rhetorically reengineered our constitutional narrative to benefit the executive branch. It was Richard Nixon. Well after the creation of the modern presidency, when the American public was already accustomed to thinking of presidents as powerful, Nixon argued that Congressional investigations into Watergate offended the president’s status as Congress’ equal. Every subsequent president but Carter has used the locution that the branches are coequal.

The term coequal, as well as the idea of checks and balances, was repurposed to suit presidents aiming to bolster their own claims to power.

Federal judges have gotten in on the act as well. In the last fifty years, many Supreme Court decisions have employed the phrase “three coequal branches,” vaguely eliding what is actually equal about them. Both presidents and Supreme Court justices have tremendous incentives to make the American public believe that these institutions are equal in power to Congress. They have carefully crafted their words to give this impression. The media and the public, not knowing better, have gone along with this pithily phrased reconfiguration of power.

Even more strange is that this idea did not originate with presidents or justices. Rather, the “myth of equality” originated in Congress, the branch that had the most to lose under this new arrangement. The founding generation understood that the branch that writes legislation provides by far the greatest direction to the state. They intentionally empowered Congress to undertake this task, advised by the president, of course. As Madison’s words indicate, they believed that granting Congress the power to write legislation confirmed the legislature’s “predominant” position within the government.

So why would Congress intentionally discount its own power? This was part inadvertent mistake and part strategic calculation. In the early 1950s, California Senator (and majority leader after the death of Robert Taft) William Knowland started employing this idea in his efforts to counter the Truman Administration. He apparently did not recognize that his rhetoric diminished Congress’ traditional role.

The “Myth of Equality” originated in Congress, the branch that had the most to lose under this new arrangement.

By the 1960s, Democratic Congressional leaders were regularly repeating the understanding that there are three coequal branches. Rank and file members of Congress have done so ever since. If Congress is understood to be the most powerful directive force in the government, then its members will be held responsible for the condition of the nation. Representing just one of three coequal branches allows members to avoid responsibility. They claim that if it were up to them, the nation’s problems would be solved, but unfortunately they cannot control the other coequal branches. This rhetorical strategy pays off handsomely during elections.

Coequality suggests that all branches are equally entitled to weigh in on every issue that comes before government. This also reengineers the constitutional system. It short-circuits a kind of humility that is supposed to be built into constitutional government. It bypasses the first question that should be asked by every constitutional actor: “are we authorized to do this?” Instead, presidents place their stamp on every area of government concern and it is presumed that justices can pronounce judgment on anything the government does.

By contrast, the Constitution itself has the legislature legislating, the president executing the law, and the judiciary deciding with finality the disputes that occur under the law, with few exceptions. The primary concern of the founders was not, in fact, to check each branch with the equal power of the others. Their primary concern was to selectively employ shared powers to keep the three distinct functions of government operating squarely within their separate constitutional spheres. In thinking that checks and balances are at the heart of the founders’ project, we do violence to their interest in creating a workable government.

The Philadelphia Convention was far more concerned that legislatures, not executives, would gather power to themselves. This was based on their own lived experience. Madison called legislative power an “impetuous vortex” that threatened to crash through constitutional barriers. Accordingly, the Convention dealt the president in to the legislative process. It would be hard for Congress to usurp the president’s executive power given the latter’s ability to veto legislation and to help set the national agenda. Realizing that executives could also be imperious, they required nominations for high-level positions be approved by the Senate, but they granted the legislature no corresponding executive power. The judiciary was not granted any legislative or executive power. It was insulated through the independence of lifetime appointments.

The purpose that Madison outlined for shared powers is telling, but nearly forgotten in our headlong rush to warp his thoughts into our own modern enthusiasm for checked government. Madison’s view was that the branches were each given the powers required to defend their own constitutional functions. In other words, the checks and balances set into the Constitution are not designed to produce a cumbersome, unwieldy government. Instead, shared powers are intended to preserve the separation of legislative, executive, and judicial functions, so that the system can operate effectively over the long run, without major constitutional distortions. There can and there should be robust debate about whether this vision was sound and smart, but the debate over what the founders wanted must be properly informed, not based on a fundamental misconception driven by what we want them to stand for.

Madison’s view was that the branches were each given the powers required to defend their own constitutional functions.

At stake is the ability of this government to produce lasting and legitimate outcomes. With the public thinking that gridlock is an expected or even desired norm of government, it is no wonder that political partisans on the left and the right have looked to a messiah president for results. The executive inventions of recent decades—signing statements, and the increasingly aggressive use of executive orders and executive agreements—are partly a response to this impulse. However, they also help accomplish the tasks required of a government that now has difficulty producing them. An increasingly unilateral presidency is not a positive development. Even worse is the worshipful acceptance of coequal branches that justifies the gridlock presidents aim to overcome.

What is a better remedy for our political ills? First, we need to understand that the United States government was not set up as a consensus-oriented regime that enshrines checked government as its baseline performance. Instead, we have a government with three independent branches that are each constitutionally empowered to perform their respective functions at all times. If not quite rare, clashes between the branches performing their individual functions should not be routine either.

Second, the language we use to describe this government should be more precise. What we often describe as a “separation of powers” is really more of a “separation of functions.” Neither should we blithely toss about the term “coequal branches.” The three branches do have equal constitutional standing. Each branch is equally empowered to perform its own designated constitutional tasks. Yet the government’s branches are not equal in power.

These realizations would produce a very different and more effective kind of governance than we now have. The famous dictum of presidential scholar Richard Neustadt that the United States government has “separated institutions sharing powers” should be treated with caution. There are shared powers, but they are exceptions rather than the rule. These exceptions were put in place to safeguard the separation of functions. It is more accurate to say that we have “separated institutions sharing in governing, through the exercise of their distinctive powers.”

Third, the American public must demand that responsibility accompany power. In a working constitutional system, this means two basic things. Each institution must respect the powers given to others. Unlike in previous generations, today’s government officials spend almost no effort thinking about or describing the actual constitutional boundaries imposed on their home institution. This is both a symptom and cause of the muddle that is institutional power in the United States today. The late 17th century political theorist John Locke warned of usurpation, which is when those not authorized to wield a power exercise it. The founders were keenly aware of this problem. We should be too.

The institution granted a power has a corresponding duty to employ it. Just as executing the law is not optional for the president, neither is legislating optional for Congress. This also brings us back to a foundational understanding of the US government. Locke called the legislative power “sacred and unalterable.” No one else can perform the duties given to the legislature. Congress has a duty to legislate faithfully and conscientiously, not to dither or cede its own constitutional powers to others. This can make the two houses of Congress and the president “rivals for power,” but it also produces a “necessity to compromise” among them. What we need is more governance, less grandstanding and usurpation.

There is a way forward using this government. It requires casting aside the current mantra that there are three coequal branches in favor of a more careful consideration and responsible use of the institutions we have.

 

 

David J. Siemers is professor of political science at the University of Wisconsin-Oshkosh. This article is based on his latest book, “The Myth of Coequal Branches” (University of Missouri Press, 2018), part of the Kinder Institute book series: Studies in Constitutional Democracy. He has authored three other books including “Presidents and Political Thought” (University of Missouri Press, 2009).



Reinterpreting the S…

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