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Separation of powers and the executive in the USA

The USA Constitution enacted by Convention in Philadelphia in 1787 did not define the separation of powers: one will not find such words there. Still, it is obvious now that Founding Fathers had such an idea in their minds and the Constitution was constrained in such a way that the powers would be not only separated but also balanced. Time after time, some discussions concerning the objects of the separation of powers occur. One side claims that the separation of powers and checks and balances exist just for the prevention of tyranny, others reply that the efficiency of government should also be taken into account.

Likely, it is narrow-minded to envisage only one object of the separation of powers. In 1787 Constitution the tyranny prevention was the main, because “in republican government, the legislative authority necessarily predominates” [2] but not the only object to achieve. Madison named the Federalist [3] No. 48 ”These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other”. Though J. Madison argued that it should led to the concentration of powers and the lost of freedom it also would stick the government in the endless disputes and polemics. He saw the “the greatest of all reflections on human nature” [2] in the government.

J. Madison was the one who defended the separation of powers doctrine stated in the Constitution in the Federalist’s articles. It was governmental experience of states [4, P. 13] which led to the powers of the Congress and checks upon it. The Framers were afraid of the boundless powers of the legislature. J. Madison cited T. Jefferson “One hundred and seventy-three despots would surely be as oppressive as one. <…> An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others” [2]. But after 1973 J. Madison proclaimed “It is necessary to adhere to the «fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature” [5].

During two centuries the balance of powers in the government was not stable. Only the judiciary power grew consistently, the legislature and the executive were exchanging dominance [6, P. 649] subject to political situation and historical issues. There is a lot of concern of growing presidential power in the USA today, but where was this concern during the last century? Maybe the scholars were concerned but not the congressmen (maybe except rare exceptions like Watergate). Many scholars are blaming the President for his constitutional powers abuse and creating the imperial government. But other scholars have begun to maintain the same about the Congress some time ago. [8]

The Congress practice shows that this institution was delegating functions to the executive constantly [9] and only now there is some willingness to control the executive more strictly. But other question should be raised then – will the Congress be able to handle with all the situations the executive does. The Congress delegated many functions to the executive because could not handle with new challenges arisen. [1] Secondly, a big deal of laws is passed by the executive initiative in the Congress. A lot of time is wasted for supervision of the agents they have created. The other part of time is spent to supervise the implementation of laws by creating various commissions. [9] So here comes the old argument for the executive – it is the executive to react fast and adequate to any emergence, it is the executive to be widely seen by the public (the source of all the governmental powers), it is the executive to be clearly observed by other checks. Seemingly, this and much more reasons scenario led to the present situation in balancing the powers in the USA.

The President power today has become stronger than ever. Recent Samuel A. Alito appointment for the Supreme Court clears that the Supreme Court will be looking towards the strong President for the next decades.

There could be a reason to doubt about the S. Calabresi and J. Lindgren opinion about the President‘s role in the USA custody and foreign policy as well. [12] They claim that in the custody policy the President simply do not have enough powers under Constitution and in foreign policy everything depends on the sum of money given by Congress. But the latest history gives us opposite examples. In 1995 President B. Clinton signed an executive order which prohibited the federal government from doing business with companies that hire permanent replacements for workers who are on Strike [13]. It is the best example of the interruption into the domestic affairs. Other example is President’s G. W. Bush executive order enacting the “spying law”. And now the man who proposed this document is leading the CIA (the military leads the civil organization) and it does not matter what the President is going to do, is he going to change it or not. This action is still the example of how a one person can violate the civil freedoms: no difference why he says he does so: for public safety or anything else. President F. D. Roosevelt was also claiming to act for the public good (truly he was seeking to have the Court in his pocket) when in 1937 he proposed to change the number of the judges in the Supreme Court of the USA [14]. President A. Lincoln was acting for the public save then he enacted the executive order letting arrest people having different (“not right”) ideology [15]. A history can give more examples but this only support the standing that the President‘s power can be abusive and sometimes it is.
But does the USA (particularly the Congress) have another choice than just sitting around and watching how everything is going under the President’s control? Perhaps it does. Lately, the congressmen have reminded that the President does not have the authority to start a war in Iran [16]. Still, it is not the reason to believe that the Congress have much power in this sector. Historically, it was foreseen that the President have no right to declare a war (still having the right to decide on the army disposure).

The Presidents in the USA exerted military force on foreign soil without congressional authorization for many times: there were a hundred of such activities and only five of them were confirmed by the Congress as it was proclamation of a war. [19] Despite such a practice the Congress have enough powers to balance the President’s activity by reducing the budget part for the Army or reducing the number of soldiers etc. One may argue the President would veto such a decision, but the Congress has a power to override the President’s veto. There is other question – is the Congress able to do so? The legislative often (almost always) consists on the interests’ balance and finally one interest prevails. [1] Often it happens to be a party subordination. So, according to the name of the article written by D. Levinson and R. Pildes [20], there is also “the separation of parties, not powers” and the opposite party will need several years to gain a vast majority in both the House of Representatives and the Senate, not taking into account that something extraordinary may happen (for instance 9/11). But is not it a sense of the separation of powers doctrine? “The great security against a gradual concentration of several powers in the same department, consist in giving to those who administer each department, the necessary constitutional means, and personal motive, to resist encroachments of the others” [2].

Still, the words written in the Steel Seizure Case [10] by Mr. Justice Jackson are truly worthy: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations”.

Finally, it could be stated, that the Congress of the USA is weak today and only it can try to change this situation. It seems like America has forgotten the founding objectives of the Constitution. It looks like the opinion prevail that the system does not matter, matters only the effectiveness. So, the USA is consequently receding from the objectives sought by Constitution. A lot depends on the ongoing Presidents in the future – there have been moments in the USA history when after the Presidential elections the powers went back to the Congress. Still, there is a question on the future of the “madisonian structure”. There was a successful implementation of Aristotel’s golden mean in the USA governmental system. The Branches should try to keep on working the “checks and balances” system which survived and stood up for so many years. If it still exist.


1. Larry Kramer. The Lawmaking Power of the Federal Courts: Pace Law Review –1992.
2. The Federalist No. 51.
3. The Federalist No. 48.
5. Мишин А. А. Принцип разделения властеи в конституционном механизме США. Москва: Наука – 1984.
6. Rakove N. J. Original Meanings: Politics and Ideas in the Making of the Constitution. New York: Alfred A. Knopf – 1996. Quated in Gonsalves S. What James Madison would do?
7. Encyclopedia of Democratic Fought. Edited by Clarke P. B. And Foweraker J. Routlendge, London and New York – 2001.
8. The White House. Richard Nixon.
9. Levi Edward H., Some Aspects of Separation of Powers: Columbia Law Review – 1976.
10. Kurland Philip B., The Rise and Fall of the “Doctrine” of Separation of Powers: Michigan Law Review – 1986-1987.
11. The decision of the Supreme Court of the United States of America in 1952 case Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579.
12. Alliance for Justice. Report on the Nomination of Samuel A. Alito to the United States Supreme Court.
13. Calabresi, Steven G. and Lindgren, James T. The President: Lighting Rod or King?: Yale Law Journal – 2006.
14. Vo Ch. Separation of Powers.
15. Teaching with Documents: Constitutional Issues: Separation of Powers.
16. Mathews K. M. Restoring The Imperial Presidency: An Examination Of President Bush‘s New Emergency Powers: Hamline J. Pub. L. & Pol‘y – 2001-2002.
17. Clinton: No Military Action on Iran without Congressional Authority, February 14, 2007.
18. The Federalist No.79.
19. Germond J., Witcover J. To Declare War or Not to—A Constitutional Crisis?: San Diego Union, 14 December 1998, B11. Quoted in Bandow D. NATOs Balkan Disaster: Wilsonian Warmongering Gone Mad.
20. Gaziano T., Groves S. Walsh B. Congress’s Iraq Resolutions: Without Resolve or Constitutional Purpose.
21. Levinson D. J., Pildes R. H. Separation of Powers, not Parties: Harvard L. Rev. – 2006.