President Donald Trump recently quoted Napoleon Bonaparte in an apparent attempt to justify his executive orders and other actions: “He who saves his Country does not violate any Law.” But U.S. presidents derive power from the Constitution, not from the opinions of an 18th century French military dictator. Under our Constitution, presidents are not above the law, whatever their motives. Violating the Constitution, even in the name of efficiency or expediency, undermines the balance the Founding Fathers put in place to guarantee the long-term safety of our country.
The U.S. Constitution explicitly guards against the consolidation of power. It does this, in part, by separating government into the executive, legislative and judicial branches, while also dividing power between the federal government and the states. The Constitution isn’t just about what the government can and can’t do; it’s also about the who and the how.
This separation of powers might seem like an abstract concept that needlessly makes it difficult for government to act. For example, many agree with the president’s desire to cut federal spending. Why should it matter if he does so by violating constitutional separation of powers, dismantling agencies Congress created or ordering spending freezes of money Congress has already allocated? Who cares if the president acts by executive order or if Congress passes legislation to accomplish the very same thing?
Everyone should care because the Constitution’s separation of powers protects us all. Constitutional separation of powers safeguards individual rights, limits private entities, promotes the rule of law and protects against the tyranny of unchecked power.
Protecting individual rights
First, the Constitution’s separation of powers protects individual rights for everyone. Even with a Bill of Rights, the Framers believed that the structures of the Constitution formed the bedrock protection for our most precious individual rights, including freedom of speech and religion. As the late Justice Antonin Scalia explained, “every banana republic,” every “president for life” (i.e., every dictator) and every oppressive government (including the former Soviet Union) had a bill of rights. The United States, by contrast, has both a bill of rights and a Constitution that structures government so that each branch can check and limit the others. If one branch threatens individual liberties, the other branches can step in to preserve them.
Limiting private entities
Second, the Constitution’s separation of powers prevents private entities from exercising undue influence. The Constitution’s framers were concerned that private entities would usurp public power to use it for their own benefit. Separation of powers helps minimize that risk. While a private entity might come to dominate one branch of government, separation of powers makes it much harder for anyone (even a billionaire) to dominate all three.
Promoting the rule of law
Third, the Constitution’s separation of powers promotes the rule of law. If one person or entity consolidates powers of law-making and law-enforcing, little incentive exists for clarity. Rather, that person or entity can make up rules as they go, without providing clear notice to the public about the law’s requirements or how people should comply. Such lack of clarity undermines transparency and notice, fundamental aspects of the rule of law that are essential to democracy, fairness and good government. The Constitution’s separation of powers encourages the different branches of government to check each other, requiring that lawmakers and law-enforcers be clear with each other — and with the public — to achieve their policy goals. That divided power also makes it more difficult for either the president or Congress to unfairly target individuals or groups they dislike.
Guarding against the tyranny of unchecked power
Fourth, the Constitution’s separation of powers safeguards against tyranny. In the Federalist Papers, James Madison famously wrote that “the accumulation of all powers legislative, executive and judiciary in the same hands ... may justly be pronounced the very definition of tyranny.” The Constitution’s separation of powers among the president, Congress and the judiciary helps ensure that none of them can consolidate power and become a tyrant. Worried that a president might act like a king, the framers crafted mechanisms for Congress to check the president. Independent federal courts also play a crucial role in preventing wrongful consolidations of power, including by a president.
A month ago, Trump took an oath to uphold the Constitution. Yet, his subsequent actions and words suggest he has no problem ignoring the Constitution’s separation of powers, if they impede his plans. Such an approach jeopardizes our constitutional system and the values the founders structured the Constitution to protect.
Because separation of powers serves critical goals that protect all of us, we urge you to stand up for the Constitution and its principles, especially when you agree with the president’s goals.
We also urge our elected representatives in Congress to use their constitutional powers to resist the president’s unconstitutional overreach. When Congress refuses to defend itself from an overstepping president, it fails to defend us all.