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Opinion: Separation of powers is supposed to stop tyranny. But is it eroding?

Separation of powers is arguably the defining feature of the U.S. Constitution — the beating heart of our constitutional design

Editor’s note: In his April 4 address at the general conference of The Church of Jesus Christ of Latter-day Saints, President Dallin H. Oaks spoke of his belief that “the United States Constitution contains at least five divinely inspired principles”: popular sovereignty, the separation of powers, federalism, individual rights, and the rule of law. This essay is the second in a five-part series that will address each of these principles.

Harry Truman had a problem. Two years earlier, he had sent American troops across the Pacific to defend South Korea against a communist invasion from the North. He did so without a formal declaration of war or any other authorization from Congress. This might pose a constitutional problem, but Truman had a concrete problem as well. Thousands of American soldiers, on his watch, were fighting a bloody overseas war. To win, they needed tanks, guns and other weaponry. And to procure such armaments, Truman needed steel.

That was his problem. In the spring of 1952, a national labor strike threatened to halt production at America’s steel mills — a potential disaster, Truman believed, for the war effort in Korea. If the strike went forward as planned, steel production would effectively cease. Congress declined to intervene. Truman found himself facing a crisis.

But Truman was president of the United States — the man whose desktop placard proclaimed, “The Buck Stops Here.” On April 8, 1952, the buck stopped resoundingly when Truman signed an executive order directing the secretary of commerce to seize the nation’s steel mills and ensure that production continue. “These are not normal times,” Truman explained in a nationwide broadcast. “I have to think of our soldiers in Korea ... the weapons and ammunition they need.”

To his staff, Truman justified his action with a homespun theory of constitutional power. “The president,” he told them, “has the power to keep the country from going to hell.”

Less than two months later, the Supreme Court corrected the president’s view. In the case of Youngstown Sheet & Tube Co. v. Sawyer, a majority of six justices declared the steel seizure unconstitutional. The justices in the majority offered different reasons for their ruling, but they agreed on two core propositions: First, emergencies don’t create additional executive power; and second, the president can’t seize private property without congressional approval.

Truman was livid. Even Justice Tom Clark, his own former attorney general, had voted against him. The president was somewhat reconciled only when Justice Hugo Black, author of the court’s main opinion, invited the president and the other justices to a party at his elegant antebellum home in Old Town Alexandria. As the evening began, recalled Justice William O. Douglas, the president was “a bit testy.” But when Black passed around the bourbon and canapes, Truman relaxed.

“Hugo,” he said, “I don’t care much for your law, but, by golly, this bourbon is good.”

Separation of powers

The steel seizure controversy highlights fundamental features of American law. It was, at bottom, a dispute about where Congress’ power ends and the president’s begins. With the Supreme Court acting as umpire, the case offers a classic illustration of the separation of powers.

“Separation of powers” is a well-worn label for an old but essential concept. Separation of powers is arguably the defining feature of the U.S. Constitution — the beating heart of our constitutional design. It has done more to secure and maintain American liberty than anything found in the Bill of Rights or anywhere else in the Constitution.

“Every banana republic,” observed the late Justice Antonin Scalia, “has a bill of rights.” What they don’t have is an effective separation of governmental powers, which is why the rights they solemnly proclaim aren’t worth the paper on which they are printed.

Separation of powers was the American founders’ principal response to the critical dilemma they faced. Within their lifetime, the framers had experienced two varieties of misrule: centralized tyranny under George III and something like anarchy under the Articles of Confederation. Prior to the Revolution, the king and Parliament had wielded too much power; after the Revolution, the confederation Congress possessed too little. The Constitution’s framers sought a third way — a happy medium between oppression and chaos; a Goldilocks government between the two extremes.

The pursuit of such a balance had been, for millennia, political philosophers’ quest for the holy grail. It was the cardinal question of constitutional design: How do you grant the government enough power to govern but not enough to oppress? How do you empower majority rule without imperiling individual rights?

“In framing a government which is to be administered by men over men,” wrote James Madison, “the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The Constitution’s response was to divide the power it bestowed. It did so in two directions: vertically, between the federal government and the states; and horizontally, among the branches of the federal government. The phrase “separation of powers” usually refers to the horizontal split, which is the subject of this essay. The vertical split is usually called federalism, the topic of the next essay in this series.

Branches of government

The three branches of the federal government — the legislative, the executive and the judicial — play different roles but all have one function in common: Each branch must work to keep the other branches at bay. This was Madison’s core insight.

In perhaps the most famous passage he ever wrote, Madison observed that “the great 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 encroachments of the others. ... Ambition,” Madison continued, “must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”

How does that work in practice? The basic mechanism is captured in another familiar phrase: checks and balances. Under the U.S. Constitution, the separation of powers is not complete. Instead, the branches are both independent (such that no one branch can dominate the others) and interdependent (such that each branch constrains the others). The Constitution parcels its powers in such a way that each branch has a vested interest in checking the other branches and preserving its own independence.

Consider, for example, the powers to make war and conduct foreign policy. Under the old British constitution — a hodgepodge of customs and laws rather than a single written document — decisions about war and peace were among the so-called prerogative powers of the king.

Prerogative powers fell within the crown’s special purview, essentially unchecked by Parliament. The U.S. Constitution, by contrast, carefully divided the traditional prerogative powers between Congress and the president, and it assigned the federal courts to police the boundary between the two.

The president, for instance, is commander in chief of the armed forces, but only Congress can declare wars or raise armies to fight them. As commander in chief, the president may conduct military operations, but only Congress can fund them. The president may negotiate treaties, but a Senate supermajority (two-thirds) must ratify them.

That, at least, was the original design. Modern practice looks rather different. At least since Truman’s unilateral actions in Korea, presidents of both parties have repeatedly waged wars without congressional approval (though clever executive branch lawyers often claim to find a legal basis for such wars in obscure corners of musty statutes). Each unilateral adventure overseas supplies a new precedent, which future presidents invoke to justify unilateral adventurism of their own.

A similar dynamic is at work with respect to treaties. Getting two-thirds of the Senate to approve a treaty is hard work. In a hyperpartisan age, some might think it impossible. Here again, presidents of both parties have skirted the two-thirds requirement by signing “executive agreements” with the heads of foreign states. Executive agreements are functionally identical to treaties — they waddle like treaties, they swim like treaties, they quack like treaties — but presidents have gotten away with their gambits by giving such pacts a different name.

Inflated presidential powers are by no means limited to war and foreign affairs. In a recent book, Saikrishna Bangalore Prakash, an expert on presidential power at the University of Virginia Law School, has argued that in one realm after another “our presidents take actions not traceable to any plausible reading of the original Constitution.”

Such actions include unilaterally declaring war and contracting treaties, but also spending money without congressional appropriation, making federal law courtesy of congressional delegations and spurious readings of existing law, ignoring laws that restrict the president’s use of the military, and amending congressional laws or even the Constitution simply by repeatedly violating them. On Prakash’s telling, trivial presidential usurpations have paved the way for increasingly significant usurpations until the modern presidency bears little resemblance to the founders’ design.

Congress, moreover, is complicit in the creep — in part because roughly half of Congress is usually beholden to the president as the leader of their party, in part because many members of Congress nurture presidential ambitions of their own. For nine decades and more, Congress has delegated vast powers to administrative agencies, which do exponentially more lawmaking than Congress ever does.

Most American law is made by agencies who answer to the president rather than the American people. In recent decades, Congress has sat idly by while presidents, by virtue of executive orders, increasingly make laws rather than enforce them. The tide has been swelling for years; it shows no signs of stemming soon.

Defenders of the inflated modern presidency and its sprawling administrative state insist that they are required by the imperatives of governance in a complex, modern, industrial-technological era. The Constitution’s 18th-century letter must yield, so the argument goes, to 21st-century necessities.

One should view such arguments with caution. A Constitution designed to endure for centuries should, of course, be applied flexibly to changing circumstances. But tyrants in every age have pleaded necessity; authoritarians always invoke emergencies, exigencies or the latest crisis to justify assuming additional powers.

The Constitution’s framers defined tyranny as the concentration of powers in one set of hands, and I see no reason to revisit that definition today. The Constitution’s unique combination of independent branches and interdependent checks remains the most powerful means of preventing such a concentration.

Fortunately, a measure of interbranch independence persists, and many checks remain in place. What’s more, the remedy for most contemporary imbalances lies squarely in Congress’s hands. Modern presidents wield as much power as they do largely because modern Congresses let them get away with it. But in most instances, legislators could reassert their constitutional powers simply by passing laws. Congress retains the power to restrain the presidency, and Congress still answers to voters.

“A dependence on the people,” Madison wrote in Federalist 51, “is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” Madison was talking about the separation of powers. Perhaps the time has come for We the People to exercise that primary control by insisting with our votes that candidates take such auxiliary precautions seriously.

Justin Collings is a professor at Brigham Young University Law School and a fellow with the Wheatley Institution.

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