Constitutional Limitations – Separation of Powers

The idea of “separation of powers” (while originally found in the Constitution of the Roman Republic) is strewn throughout the United States Constitution. Article I establishes the powers of the Legislative Branch, Article II establishes the powers of the Executive Branch, and Article III establishes the powers of the Judicial Branch. The idea of combating tyranny, monarchy, and dictatorships was so strong that the framers of the Constitution deemed it urgent to address those issues first and foremost.

Each of these three branches have responsibilities; one of the responsibilities being to ensure that the other two branches are not abusing their powers. This is commonly referred to as a system of checks and balances. While the separation of powers keeps everything fair, some argue that it has made American government “deliberately inefficient.”

In James Madison’s The Federalist No. 51:The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments (Wednesday, February 6, 1788) he says,

“But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.”

That being said, clearly all of the branches are not equal. (And the second part definitely makes me want to agree that our government is “deliberately inefficient.”) While this inefficiency can be good—to prevent a majority from steamrolling over the minority—it jams up all the potentially positive that could be accomplished.

A major problem that I have is the powers originally given to the Executive Branch. As spelled out in the Constitution, the President of the United States has the following powers: [1]

• May veto laws
• Wages war at the direction of Congress (Congress makes the rules for the military)
• Makes decrees or declarations (for example, declaring a state of emergency) and promulgates lawful regulations and executive orders
• Appoints judges and executive department heads
• Has power to grant pardons to convicted persons, except in cases of impeachment

The powers given to George Washington are not nearly the same one’s that President Barack Obama has–nor several of the presidents before him. While the powers of the Executive Branch have steadily grown since 1789, the other branches have not. The balance part of checks and balances is starting to lean more towards the Executive Branch; it’s leaning in the direction of where the framers of the Constitution feared most.

In President Theodore Roosevelt’s autobiography, he stated,

“I did and caused to be done many things not previously done by the President…I did not usurp power, but I did greatly broaden the use of executive power.” separation of powers

[1] Wikipedia: Separation of Powers