I. Why Do Structural Constitutional Provisions that Constitute the Separation of Powers Matter?

The Problem

What’s the Problem if the Separation of Powers Is Altered or Ignored?

Each of the three branches of government has wrongfully relinquished authority to the regulatory state: the legislative by delegating its lawmaking authority to regulatory agencies; the executive by allowing unaccountable “independent” agency officials to make and enforce the law; and the judicial by showing bias toward agency officials by deferring to them in court.

The U.S. Constitution’s framework carefully “vests” or grants different powers from the people to each of three branches of government, and the Constitution grants additional powers to each to check the expansion or abuse of the other branches’ powers. These are the Constitution’s structural provisions, which form the backbone of the “separation of powers.” They provide structural protections against abuses of power that undermine freedom. They must be fully restored because they are the main protections of our liberty.

These structural protections inherent in the separation of powers are essential to secure our individual rights. Indeed, they are the most important protections of our individual liberty. Without them, the Bill of Rights might be little more than a wish list. As Justice Antonin Scalia explained in his dissent in Morrison v. Olson, many countries have seemingly improved upon our Bill of Rights with additional supposed rights, but “mere words” are “worthless” without separation of powers. Elsewhere Scalia declared, “Every tinhorn dictator in the world today has a Bill of Rights. It isn’t the Bill of Rights that produces freedom. It’s the structure of government that prevents anybody from seizing all the power.”

Indeed, the North Korean and Chinese constitutions guarantee such things as the right to relaxation and freedom from insults. The former Soviet Union’s constitution ensured the right to housing, work, rest, and much more. But without strong separation of powers and appropriate checks on governmental power, nothing guards individual rights from government encroachment when a centralized government wants to act.

The Constitution

How Does the Constitution Separate Government Powers?

The Framers’ insight was not just that government powers should be divided, although even that ensures certain government actions require multiple branches to act together before the coercive power of government could be employed against us. In addition, certain powers (like lawmaking) were given to a particular branch with special controls (such as direct electoral controls), and then checked in other ways (such as the veto power and the power of judicial review of unconstitutional statutes). The direct election of representatives and senators, for different terms, with different constituencies, and the almost simultaneous agreement that is necessary in both legislative chambers, plus presidential assent or supermajority override, requires compromise and makes abusive laws less likely to pass.

The Framers also provided particular checks to particular branches with an expectation that members of each branch would be ambitious, and especially ambitious in seeking the affection of the people. It was expected that they would generally use their ambition to check unpopular or dangerous ambition in other branches. As James Madison explained in Federalist 51, “But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others … Ambition must be made to counteract ambition.”

In this manner, the constitutional separation of powers is fundamentally different from a power-sharing arrangement among oligarchs, who can create new arrangements if it suits their needs. For example, Mafia bosses supposedly divided up the boroughs of New York City in which each of them would control their illicit trade—for the benefit of the Mafia bosses and their crime syndicates. The constitutional separation of powers operates differently because it divides a single exercise of government power horizontally, not geographically, and that’s for the benefit of those subject to government power, not the government actors. Ideally, before the government can exercise its power against us, Congress has to establish laws (through a particular process that is sensitive to the liberties of the people), the executive has to investigate and prosecute a violation of law, and the courts have to pass independent judgement on the constitutionality and applicability of the law in question to the citizen’s actions.

Accordingly, the Supreme Court has correctly explained that members of the three branches can’t agree or collude to violate the separation of powers because it is not designed for their benefit, but to protect the liberty of the people.

Government Violation

What Happens When Government Violates the Separation of Powers?

When the separation of powers becomes seriously distorted, the checks and balances of the Constitution lose much of their force to limit government’s tendency toward tyranny. Ambition doesn’t check ambition. When courts abdicated their role to prevent delegations of lawmaking power and to independently interpret law, that encourages even more unaccountable delegation of lawmaking power—and the types of lawmakers elected over time become more and more reluctant to take responsibility for substantive details of lawmaking. When the President is prevented from controlling the actions of supposed independent agencies or even functions of his own departments, people come to expect lawmaking from unelected bureaucrats who hide behind false or overstated claims of expertise. When other officials claim emergency powers to issue unilateral edicts and mandates, all liberty is threatened.

The Solutions

How can The Separation of Powers Be Restored?

There may be almost as many solutions to fully restore the separation of powers as there are means of violating those structural protections of liberty, but we can identify some of the most important solutions and low-hanging fruit here. Other explainers in this series drill down on particular problems and identify other solutions or expand on those listed below.

Increase public awareness and corresponding public calls for the branches of government to carefully guard their constitutionally assigned spheres of authority, including stopping Congress from delegating more of its lawmaking authority to agencies and ending judges’ abdication of their duty to “say what the law is” by deferring to (or showing bias toward) federal agencies.

Ensure through litigation, additional legislation, or administrative reform that “rulemakers follow the rules” when they issue rules that bind the public. For example, the Constitution’s Appointments Clause requires that only principal officers appointed by the President and confirmed by the Senate may finalize regulations with the force of law. Other regulatory reform laws that increase public accountability include the Congressional Review Act, Regulatory Flexibility Act, and Paperwork Reduction Act, among others.

Guarantee proper due process protections in agency enforcement actions, such as making agency rules of evidence public, clear, and effective, preventing multiple enforcement actions stemming from the same conduct, and giving notice of an investigation and an opportunity to respond to possible charges.

Hold agencies accountable for mistreating citizens by making agency officials answerable to elected officials and ending immunity doctrines that protect officials from being held personally liable for gross misconduct.

PLF is a national nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse. We sue the government in court when our clients’ rights protected by the Constitution are violated, and advocate for legislative and regulatory reforms in the other branches of government. Started in 1973 in California, PLF now seeks reform across the country, including suits filed nationwide, scoring precedent-setting victories for our clients, with an unmatched track record at the United States Supreme Court.