THE POLITICS OF THE SEPERATION OF POWERS IN FEDERAL GOVERNMENT

By Retired Judge John Markson Judge Valerie L. Bailey-Rihn

A. Origin of the Separation of Powers Doctrine in America.

This term does not appear in the Constitution.

James Madison, in his original draft of what would be become the Bill of Rights, included a proposed amendment for the explicit separation of powers. This amendment was rejected because, in part, his fellow members of Congress thought the separation of powers to be implicit in the structure of government under the Constitution. Therefore, an explicit amendment was not necessary.

The first Article of the Constitution states, “All legislative powers … shall be vested in Congress.” The second Article vests “the executive power… in a President.” The third Article places the “judicial power of the United States in on Supreme Court” and “in such inferior Courts as the Congress… may establish.”

James Madison argued in Federalist 51, “Ambition must be made to counteract ambition.” He continued:

“But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

Separation of powers is one of two broad organizing principles in the Constitution. (The other is federalism.)

Separation of powers prevents concentration of power (or ambition) and provides each branch with weapons to fight off encroachment by the other two branches. This is often called checks and balances. The branches are made to be independent but also interdependent.

Not designed to maximize efficiency, but rather to maximize freedom by controlling power.

Familiar examples of separation of powers:

Congress passes laws, President may sign or veto, but Congress may override veto.

1

President is commander in chief, but Congress declares war.

President appoints cabinet and Supreme Court Justices, but Congress provides advice and consent.

Supreme Court exercises judicial review and may declare executive and legislative action unconstitutional.

But, as Madison also observed, the Constitution establishes but “parchment barriers.” (Federalist 48) It is not self-executing. Making it work demands comity and respect for the equal authority of the other branches. It demands mutual toleration and institutional forbearance. (See How Democracies Die, cited below.)

B. Political Parties and the Separation of Powers.

While Madison conceived of the separation of powers as a way to blunt the divisive effect of political parties by spreading power across competing institutions, he failed to anticipate the rise of a national two-party system. Party loyalty prevails over institutional loyalty.

Where the separation of powers has worked effectively, it has generally been in a context of mutual toleration between the parties, respect for norms, and institutional forbearance. In an atmosphere of hyper-partisanship, separation of powers as a limit on abuse of power breaks down.

Does the conduct of the legislative branch in our times reflect greater fidelity to constitutional principles of separation of powers or to party? Consider government shutdowns, partisan impeachment, abuse of filibuster, abandonment of regular order, obstructionism for its own sake, use of debt limit as hostage, refusal to take up judicial nominations.

C. Federal Judicial Power, Protection, and Limitations.

1. Power: Judicial review.

In Federalist 78, Hamilton called the judiciary the ‘”least dangerous branch” because it has no power over the sword or the purse.

Marbury v. Madison (1803).

Review of executive power. See generally Jed Rakoff, “Don’t Count on the Courts,” New York Review of Books, April 5, 2018.

It happens, e.g., steel seizure case, Nixon tapes case, Guantanamo cases.

Deference to wartime/national security decisions.

2

Judicial doctrines limiting review, e.g., standing, political question, Chevron

2. Protection.

Article III salaries cannot decrease while in office.

Lifetime tenure, i.e., “life terms while serving “during good behavior.” (Section I, Article III.)

However, a federal judge can be impeached as a “Civil Officer.” “The President…and all Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” (Section 4, Article II.)

The Constitution gives the House of Representatives sole power to impeach, and assigns the power to try impeachments to the Senate. (Article II.)

Fifteen Judges have been impeached; eight convicted; four acquitted; and three resigned before the outcome of the trial.

3. Limitation.

There is no enforcement mechanism for the Supreme Court decisions.

In 1831, the Supreme Court ruled against the removal of the Cherokee from their native lands. President Andrew Jackson disagreed (“Justice Marshall has made his decision, now let him enforce it.”) and removed the Cherokee and the Supreme Court was powerless to enforce its decision. This led to the Trail of Tears and nearly 4000 Cherokee died as a result of the removals.

Contrast this with Brown v. Board of Education of Topeka and other cases, in which the Supreme Court ordered desegregation of schools. President Eisenhower temporized but enforced it. (Rakoff) Later, Governor Wallace in 1963 stood in the doorway of the University of Alabama and was ordered to move by the National Guard on orders from President Kennedy.

D. Attempts to Impact the U.S. Supreme Court

After the Civil War, the Court was sometimes seen as an enemy of the working people.

3

The Great Depression magnified this view. The Court struck down in 1935-1936, eight of FDR’s New Deal programs.

Congress attempted to pass several laws seeking to limit the ability of the Court to declare laws unconstitutional.

FDR, although not vocal about the attempts, tried to reconstruct the Court with justices more favorable to the New Deal.

Proposed to change the number of Justices on the Court (which had been done six times since 1789.) The plan was to add a justice for every justice over the age of 70 who refused to retire up to a maximum of 15 total. This did not work.

More recently, Congress limited federal habeas review of wrongful state confinement to violations of “clearly established federal law.”

E. Personal Attacks On and By Justices.

Early on, Justices were highly political, and moved between political and judicial offices.

The first chief Justice, John Jay, ran for elective office twice while keeping his seat on the Supreme Court and left in 1795 to become the governor of New York. John Marshall openly opposed Andrew Jackson for the presidency. Charles Evans Hughes challenged Woodrow Wilson but later returned to the court.

Some historians believe that attacks were the norm as a result of the political differences, others do not. However, there is no doubt that Presidents and Justices have not always seen eye to eye.

President Thomas Jefferson and Chief Justice John Marshall did not get along at all. Some historians indicated that although Jefferson privately spoke disparagingly of Marshall he avoided publicly berating Marshall about decisions limiting the power of the executive and the legislature.

FDR, even in the height of the court fight over the court packing plan, did not personally attack the Justices.

President George W. Bush indicated that he did not agree with the Supreme Court’s decision that prisoners at Guantanamo Bay could challenge their detentions in Court, but stated that he would abide by it.

President Obama criticized the Justices sitting in front of him as to Citizens United decision during the State of the Union Address.

The recent attacks by the current President on a Federal District Judge and the 9th Circuit Panel have been widely publicized. (In fact, the immigration cases present a classic separation of powers issue.)

4

These attacks are not just as to the rulings but rather seem to include personal attacks as to bias and accusing the judges of a political nature.

In addition, Justices are not immune from allegations of being political.

Justice Ruth Bader Ginsburg’s criticism of President Trump resulted in an apology and a promise to be more circumspect.

Justice Hughes declared his bid for President while he was a siting justice.

Justice Scalia went duck hunting with Vice President Dick Cheney just weeks after the Court agreed to hear a case involving the vice president’s energy task force.

Justice O’Connor was overheard saying, “This is terrible” and her husband told people she would not retire if Al Gore won.

Justice Alito openly disagreed with President Obama’s criticism of Citizens United.

Justice Thomas’s wife launched a tea party-linked lobbying group dedicated to spotlighting the “tyranny” of President Obama and congressional Democrats. Thomas also officiated for longtime friend Rush Limbaugh’s third wedding.

F. Effects of Personal Attacks.

Weakens the ability of judges to do their job and fairness in the eyes of the public.

Inserts politics into a branch that is to be impartial.

Threatens the role of the judiciary in upholding the laws.

G. Where do we go from here?

Constitution is not self-executing.

Some thought-provoking reading:

How Democracies Die, by Steven Levitsky and Daniel Ziblatt.

Mutual toleration: accepting our rivals as legitimate.

Institutional forbearance: adhering to norms; avoiding “constitutional hardball”.

Can It Happen Here? , Cass Sunstein, ed.

5