Last month I participated in a seminar on “Why the Separation of Powers Matters.” What fun, right? Separation of powers is a topic that you just know is important but, given how short life surely is, that was an event that you might find an excuse to avoid. Still, there’s a lot to be said about the way our Constitution divides power among Congress and the President and the Supreme Court. It's not at all boring – really!
You remember what you learned in school: Congress passes laws, the executive branch carries out those laws and the courts settle disputes over how the laws are being enforced. But it’s really more complex than that, because often one branch can exercise authority without the others. And that’s actually a good thing, especially given how dysfunctional our federal government is these days.
Take foreign affairs, where the President can operate quickly and effectively – and Congress is usually happy to let that happen. But the government can’t spend money unless Congress authorizes it – which is why Vladimir Putin is about to get a pass to roll over Ukraine, because Republicans in Congress are blocking battlefield aid until President Biden gives in on something they want having to do with border security. Whatever it is isn’t important; they just want to beat up the President over the issue. So there’s the separation of powers in action: one branch blocking another from doing something.
Lately some folks in Congress seem hellbent on using their power to disable the government more broadly, as though they want to stop any branch from operating very well. It leaves you with a sad sense that America could be doing so much better if these capable anti-governmentalists set out to do something positive rather than just raise a ruckus.
Which is where I came down during that awesome seminar last month: The separation of powers is, in fact, essential to maintain and to nourish, because in some areas, key players are clearly less interested in making government work than in making a point — or, you might say, making spectacles of themselves. You know, holding up key military promotions, for instance, or insisting on blocking an IRS crackdown on high-income tax cheats, which could sap almost $90 billion in tax revenue. But it’s the prerogative of Congress to mess up the military and the Treasury, if it wants to.
And then consider the events of Jan 6, 2021, which you might say was the most striking example of the separation of power in our history: One branch of government withstood a violent assault that was launched by another branch. With his executive authority about to be constitutionally withdrawn, Donald Trump energized an insurrection, which Congress ultimately ignored. Except, of course, for eight senators and 139 House members, who cited spurious allegations of voter fraud in casting their votes against certifying the voters’ choice of Joe Biden. Among those who voted against the peaceful transfer of power: the new House Speaker, Mike Johnson, and the representative from the North Country of New York, Elise Stefanik.
So it's good that not everything the federal government does requires congressional action, right? Indeed, the executive branch can act on its own in many instances, though the party that doesn’t control the White House always wants to push back that power. You may recall that Fox News, the Republican party’s propaganda arm, was feverish during Barack Obama’s terms about presidential executive power, but Fox got over that ailment during the tenure of Donald Trump – who signed more executive orders per year than any president since Jimmy Carter.
Just now, Republicans are once again upset with executive orders, since Joe Biden has used them to reverse Trump’s ban on transgender Americans joining the military, for instance, and to cancel the Keystone XL pipeline. Biden has issued executive orders at a rate of 44 per year, which is right at the median of the presidents who have held office since 1980.
Which is where the Supreme Court, the third branch, is stepping in. The court seems poised in some key cases that are lined up next to shift more authority from the agencies in the executive branch to Congress. So if you’re concerned about the environment and climate change, for instance, you’d better set your hopes on legislation, not on executive or judicial action. And good luck with that, given how ineffective Congress seems to be these days.
If this sounds to you like a recipe for uncertainty, well, that’s true. Blame the separation of powers. But with the very real possibility that Donald Trump could return to the White House, and with Trump openly vowing to seize more power than any president in our history, think again: You might be glad, come 2025, that we have some checks on presidential power.
See? Laugh all you want about my panel discussion topic being less than scintillating. For all the abuse it enables and the conflict it creates, our constitutional separation of powers is worth not just talking about, but celebrating.
Rex Smith, the co-host of The Media Project on WAMC, is the former editor of the Times Union of Albany and The Record in Troy. His weekly digital report, The Upstate American, is published by Substack.
The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.