Separation of Powers

"Separation of Powers, I believe, is the number one safeguard they built into the Constitution." - Rush Limbaugh

The American Republic was founded on checks and balances. Every power was meant to check every other power. The goal was to achieve a perfect balance between the three branches of government at the national level and between the national and state governments. This balance has been eroding for a long time, but the point of the Constitution, as it was drawn up, was to make it hard for any one group to seize full power over other groups. The fact that America has survived as a free or semi-free country for over 200 years illustrates just how well the balance was constructed from the beginning. Rush grasped this concept clearly. 

“Separation of powers. Another way of describing separation of powers is the founders set up battles for power. They knew human nature. They knew Congress trying to get as much power as it could. They knew the president was gonna try to get. They knew the judges were gonna try to get as much power. That’s why they built in separation of powers. And Separation of Powers, I believe, is the number one safeguard they built into the Constitution.”

Rush understood how important separation of powers was to the preservation of freedom. Yet this separation has been slowly been eroding. The first erosion took place almost immediately. In 1805, Congress attempted to impeach Supreme Court Justice Samuel Chase. Chase, who had been appointed to the Court by George Washington and was a signer of the Declaration of Independence, was a Federalist. When Thomas Jefferson, a Democratic Republican, won the White House, a conflict between the two was inevitable. Jefferson believed Chase was biased and successfully instigated an impeachment proceeding against Chase. Chase was brought up on eight articles of impeachment. The House of Representatives passed the charges. Despite Jefferson’s party controlling the Senate, Chase was acquitted.  

The exact details of the Chase case are relatively immaterial. What matters is that a precedent was set. Federal judges were no longer considered impeachable. The Federal judiciary, appointed for life, were now completely independent from oversight. Over time, they have accumulate power to adjudicate, interpret, and effectively make laws from behind the judicial bench, taking away one of primary functions of Congress.  In the modern world, the US Supreme Court has become the ultimate legal power in the United States. They can make or unmake law practically at will, and regularly reinterpret the Constitution to fit current trends. 

Of course the Chase issue was far from the only time that separation of powers was abused. It continues to be abused even in the modern era. Nowhere in the Constitution is the president empowered to issue executive orders. However, every president (with the exception of William Henry Harrison who died shortly after his inauguration) has issued them. Originally they were just instructions to the various government departments, telling them what course to pursue, or what information to provide to the president. Very rarely were executive orders addressed to the public and most early presidents issued very few. James Madison and James Monroe share the holds the record for the fewest of a two term president, issuing just one each. John Adams only served one term, but he also only issued one. Prior to the Civil War, Franklin Pierce issued the most of any president, with a mere 35. For reference, President Biden issued 42 executive orders in the first 100 days of his presidency.

After the Civil War, the number of executive orders began to tick up as the Presidency became more powerful. Ulysses S. Grant issued 217 in his eight years in office, an unheard of number for the time. Theodore Roosevelt spiked the number again in his eight years in office, taking it over 1000. Woodrow Wilson broke that record easily with over 1800. FDR set the record with 3721, but he was in office longer than any other president. However, he averaged over 300 per year, making him lead on averages as well. Only one president since FDR has come close to 1000, that being his successor, Harry Truman. Bill Clinton holds the recent record with 364, but if Biden serves two terms, he is on pace to eclipse that.  

Executive orders in the form Washington, Jefferson, and Madison used them were relatively innocuous. They were not used to make law, or influence policy, merely to educate the president on what was going on. That precedent changed with Abraham Lincoln and the Emancipation Proclamation. Unlike most previous executive orders, this one was released publicly. Further, it openly overturned existing law. Slavery, as despicable as the institution was, was legal at the time. Congress had not weighed in on freeing the slaves. Lincoln took that power on himself, stripping away more of Congress’s lawmaking power. Presidents in his wake followed his lead, making policy and law by fiat, rather than working with Congress. Many of FDR’s New Deal projects came about by executive fiat. Harry Truman even tried to nationalize the entire steel mill industry, though that was overturned by the courts. The separation of powers had been breached again. 

FDR was perhaps the worst offender in history when it came to separation of powers. As part of his New Deal programs, he either created by fiat or got Congress to pass bills to massively increase the size of the government. Much of this was done under the auspices of helping the American people through the Depression, but it amounted to massively increasing the size and power of the executive branch. One executive order forced all Americans to sell their gold to the government. His Agricultural Adjustment Administration forced farmers to kill livestock and plow crops under when many Americans were eating at soup kitchens. Other orders and laws founded all manner of public works agencies, many of which still exist today. Many of the federal agencies that wreak havoc on American lives today, like the FDIC, the SEC, NRLB and others were established during FDR’s four terms. 

Separation of Powers was also harmed by the direct election of senators, passed in 1912. The way the Founders envisioned our republic, both the states and the people would have a say at the Federal level. Thus the House of Representatives was elected directly by the people in their districts. Senators, however, were elected by the state legislatures. This balance gave the states a voice at the federal level. With the institution of direct election of senators, American politics began the transition from a Republic, to a democracy. The Founders had feared democracy, knowing it was almost bound to lea to mob rule as it so often had in the Greek city-states. Thus when they framed their vision for American government in the Constitution, they chose a Republic, with power separated, not just in the hands of the people, not just in the hands of the states, nor concentrated within a federal branch, but distributed to prevent dictatorships and mob rule. Direct election of senators moved us away from that.

In case you are wondering what difference direct election of senators might mean in the modern world, consider the example of Pennsylvania. It’s a purple/blue state generally, but the state house almost always has a Republican majority because PA’s electoral votes come largely from Pittsburgh and Philadelphia, which vote blue. The rest of the state is conservative. Under direct election of senators, Pennsylvania has two Democratic senators (one of whom is still recovering from a debilitating stroke). If direct election of senators did not exist, Pennsylvania would have two Republican senators. Philadelphia and Pittsburgh would be able to dictate the majority of PA’s House of Representative seats, but not its Senate seats, providing a balance. As it is, they dictate both.  The other thing that the prior practice of state appointed, as opposed to direct elected senators, has brought is that very few people know who their elected state representatives (who would have made those senatorial selections) happen to be, if they have even voted in smaller state elections.  (That one change caused a major shift in political participation for many)

Separation of powers was a key idea that motivated the Founders and wove itself throughout the majestic document that they crafted to govern these United State. As separation of powers fades away in American life, Americans continue to be subjected to loss of liberty. Without the separation of powers, the government is free to amass power over the common man, placing ordinary Americans under threat. It is in the public interest to restore some of the separation of powers that has been lost. That starts with dismantling many of the insane number of federal agencies, reigning in the abuse of the courts, and limiting the President’s power to govern by fiat. These reforms must be enacted soon, before the executive branch accumulates enough power to be in essence a fiat dictator. The erosion of our Constitution and its separation of powers was explored at great length in Mark Levin’s book The Liberty Amendments which suggests several potential constitutional amendments designed to reinforce the separation of powers thus further securing our liberties.