Separation of powers: A primer By Ryan J. Watson and James M. Burnham - - PDF document

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Separation of powers: A primer

By Ryan J. Watson and James M. Burnham - - Sunday, July 5, 2015

Constitutional concepts like free speech or the right to bear arms are ingrained in our popular culture, but just 36% of Americans can name all three branches of the federal government.1 Even fewer understand why and how our Constitution allocates power among the Legislative, Executive, and Judicial branches. As we celebrate Liberty Month, it is worthwhile to review how the Constitution's separation of powers supplies a key bulwark protecting individual liberty in the world's most successful Republic. The Founders were familiar with human nature and the correlative tendency of every ruler towards tyranny. They had experienced oppression at the hands of the English King and realized that the only way to truly protect individual liberty was to limit the power of any single government official. James Madison, a central architect of the Constitution, rightly observed that if "men were angels, no government would be necessary." Federalist No. 51 (1788). He knew that every official or body would seek to accumulate "all powers, legislative, executive, and judiciary, in the same hands," and that such a concentration would be "the very definition of tyranny." Federalist No. 47 (1788). Thomas Jefferson agreed, labeling such a concentration of power as "precisely the definition of despotic government." Notes on the State of Virginia, Query 13 (1784). At the national level, the Founders addressed this tendency towards tyranny in two ways. First, they recognized that the only way to limit each official's power was to limit each

ffice's power—that is, to divide the sovereign power of government across different
ffices and separate branches. The Founders therefore divided federal power across three

different branches and numerous different officials. They did so both to limit each

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individual official's unilateral power and to ensure that the People knew which of their elected officials to hold accountable for different governmental actions. Second, the Founders wisely realized they could not trust mere "parchment barriers against the encroaching spirit of power," Federalist No. 48, and thus, to keep officials within those limits, used "ambition to counteract ambition," aligning the "interest of the man with the constitutional rights of the place." Federalist No. 51. The Founders thus created a system in which not only does no single official possess plenary power, but

fficials must also battle each other to exercise power. In that constitutional system, "the

private interest of every individual" runs counter to the private interest of every other

individual. Id. The Founders ensured, in other words, that each individual official's

inherent desire for more power would serve as a separate "sentinel over the public rights." Id. The Founders created this system by dividing the government's powers among, and even within, three separate and competing branches. Here's a quick snapshot of how they did it: As Article I of the Constitution makes clear, the Legislative Branch enacts legislation, levies taxes, regulates interstate commerce, appropriates money, and (at least theoretically) declares war. The Constitution further divides the Legislature into two bodies, the House and Senate. The Executive Branch, established in Article II, implements the laws created by Congress, and the President makes treaties, serves as Commander in Chief, and appoints federal judges and principal officers. Finally, the Judiciary, established in Article III, declares what the law is—by interpreting the Constitution and laws, and applying them to specific cases and controversies. The Founders then enmeshed each branch's powers in an elaborate system of checks and balances, whereby the branches (attempt to) keep each other in line. For example, although Congress enacts legislation, the President can veto it (subject to an override by a two-thirds vote of each house of Congress). While the President appoints officers, the Senate has the power to give advice and consent to those appointments, and also to the President's treaties. And although federal judges enjoy life tenure and salary protection, they are empowered only to apply the law rather than make it, and they can be impeached. This system cannot function, though, if the branches do not fulfill their constitutionally- designated roles and jealously guard their prerogatives when other branches encroach. The system fails and liberty suffers if the Executive acquiesces in congressional action that divests it of executive power; if Congressional representatives become so obsessed with merely remaining representatives that they are supine in the face of Executive overreach;

r if the Judiciary fails to leave the legislating to Congress. For many decades, the branches

took their duties seriously and defended their powers against one another. But in a world

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where officials stand aside as the other branches reallocate power to themselves (or to unaccountable independent agencies), one could be forgiven for wondering whether our society still understands that the separation of powers is a large part of why our Republic has long endured. The Framers carefully calibrated the Government's powers among the three branches with the aim of cabining governmental power in order to preserve liberty. During Liberty Month, we would do well to brush up on these principles. They will be needed in the days ahead. Ryan J. Watson and James M. Burnham are appellate lawyers at Jones Day. Ryan, a former clerk to Supreme Court Justice Samuel A. Alito, Jr., has been involved in numerous Supreme Court cases; James was the primary brief writer on behalf of Noel Canning in Noel Canning v. National Labor Relations Board, a successful constitutional challenge to "recess" appointments the President purported to make in 2012. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the law firm with which they are associated. 1 Americans know surprisingly little about their government, survey finds, The Annenberg Public Policy Center, University of Pennsylvania (Sept. 17, 2014).