The Separation of Powers: Free Governments are Necessarily Complicated


The New American
August 25, 1986


Have you ever wondered why constitutional law is so complicated? Sometimes the Constitution seems to be a lawyers' full-employment bill, beyond the comprehension of the average, intelligent mortal. A case in point is Bowsher v. Synar, decided a few weeks ago, in which the Supreme Court held unconstitutional the key feature of the Gramm-Rudman budget balancing law: The automatic mechanism for cutting spending was held to violate the constitutional separation of powers because it infringed on presidential authority by giving executive power to the Comptroller General, who is removable by Congress.

The Three Branches

Pursuant to the ideas of Montesquieu, Locke, Harrington and others, the governmental powers delegated to the federal government were distributed among the executive, legislative, and judicial branches. This was not intended to be a water-tight separation; for example, the veto is a legislative power given to the President. And the system was designed so that the prerogatives and self interest of each branch would check the others. The design was that no one or two of the three branches could usurp and misuse the power of the federal government.

The Congress was given the legislative power. It was checked by the power of the President to veto legislation, subject to the power of Congress to override that veto by a two-thirds vote of each house. And it was checked by the power of the judiciary to interpret and apply legislation. (We shall examine later whether the framers actually intended to give the federal courts the power to declare acts of Congress unconstitutional.)

The basic duty of the President is to execute the laws enacted by Congress. He checks the Congress by his veto, and he checks the courts by his power to appoint federal judges with the advice and consent of the Senate. He is checked in turn by the power of the Congress to impeach him, by the restriction that only the Congress can appropriate money, and by the power of the courts to interpret his actions.

"The executive Power shall be vested in a President," begins Article II. Note the difference from Article I, which says: "All legislative Powers herein granted shall be vested in a Congress...." Clearly, all the legislative powers possessed by Congress are "granted" by the Constitution. And if a grant of that power is not found in the Constitution, Congress does not possess it. In Article II, however, the statement is merely: "The executive Power shall be vested." We will note in later essays the statements by the Supreme Court that the President possesses an undefined power with respect to foreign affairs which he does not obtain by grant from the Constitution and which is therefore not specifically limited by the Constitution. During the Watergate crisis, the Supreme Court rejected President Nixon's argument that it would violate the separation of powers to require the President to surrender the Watergate tapes for use in a prosecution of other persons in federal court. Significantly, the President in that case did not use his strongest arguments: that he was withholding the tapes in the interests of national security and in the exercise of his foreign affairs power. Rather, he argued merely that a generalized privilege of confidentiality within the executive branch justified his refusal to turn over the tapes. The Supreme Court recognized that principle of confidentiality but held that it was outweighed by the needs of the federal court in the trial of a criminal case. We have to ask, however, whether the Court would have held against the President had he relied on his strongest arguments, those of national security and foreign affairs. The question is unanswered, just as other possible constitutional crises have been averted by political adjustments.

The judiciary, "the least dangerous branch," was given the "judicial Power of the United States," but the only court established by the Constitution was the Supreme Court of the United States. Congress need not have established any lower federal courts at all and, since the greater includes the lesser, Congress also has total control over the jurisdiction of those lower courts. Congress is given power to control the appellate jurisdiction of the Supreme Court and can impeach judges just as it can impeach other federal officers.

The history of the separation of powers is one of imbalance in favor of one or two branches, followed by corrections and then a gradual development of another imbalance, and so on. For example, the Vietnam War led to the assumption by Congress of undue powers over the Presidential conduct of foreign affairs. The Democratic-controlled House of Representatives has assumed in some respects the role of an alternate Department of State in blocking Presidential initiatives in Central America. We can expect a gradual correction of this distortion.

The separation of powers is complicated, but that is no reason for apology. "Nothing is more deceptive or more dangerous," warned Daniel Webster, "than the pretence of a desire to simplify government. The simplest governments are despotisms .... Every free government is necessarily complicated. If we abolish the distinction of branches and have but one branch; if we abolish jury trials and leave all to the judges; if we then ordain that the legislator shall be himself the judge; if we place the executive power in the same hands, we may readily simplify government. We may easily bring it to the simplest of all possible forms, a pure despotism. But a separation of departments, so far as practicable, and the preservation of clear lines between them, is the fundamental idea in the creation of all our constitutions."