Civics 101: Separation of Powers

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Donald Trump

We already knew it, but he keeps showing us, over and over, that Donald Trump does not know the contents of the United States Constitution, nor anything at all about how the government it defines is supposed to function. Not because I expect him to have a sudden accession of understanding, but just for the good of the order, it is well to rehearse one of the most basic principles that is literally embedded into the structure of the Document and defines how our government is supposed to function.

I refer, of course, to separation of powers.

The words, “separation of powers,” appear nowhere together in the Constitution. The concept is obvious from the structure of the document, however. The division is somewhat arbitrary, as all human categories are, but at the time the Founders wrote the Constitution, long standing convention provided for three basic powers of government, legislative, executive, and judicial.

The Constitution starts with a “Preamble,” which is part of the document, but, like an introduction or a preface, is, well, prefatory. It comes before the substance.

Article I of the Constitution, the first substantive section, states, “All legislative Powers herein granted shall be vested in a Congress of the United States….” Two things to note. First. “herein granted.” Who grants? Recur to the Preamble: We the People. In good Lockean theory, legitimate government exists only by grant of authority from the governed, who retain always the right and the power to demolish the existing government and begin anew. Implicitly, the Founders hoped to create a government that would avoid such a drastic remedy as they had pursued with the American Revolution, in which they threw off the government of England and, with the Constitution, instituted a new government.

Second, “All legislative Powers….” “Power” denotes the ability to make something happen. Presumably, you have the power to turn on your computer, which will start and run as a computer if it is connected to a power source. The power to legislate is the most basic power of government. It is the power to declare, on behalf of the entire polity, what conduct shall be lawful by defining, more importantly, what conduct shall be unlawful.

Article I, defining the legislative power of the new government, is far and away the longest article in the Constitution, containing not only the definitions of the two Houses of Congress, the House of Representatives and the Senate, and procedural rules for both, but also the long list, in Section 8, of specific legislative powers Congress shall have, such as the power to lay and collect taxes, and to declare war, and, in Section 9, specific powers Congress does not have, a much shorter list.

This Section does not come up much, but one of Trump’s scandals has made one of its provisions important. Article I, Section 9 states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” This is an issue with respect to Trump’s manufactured “emergency,” which he declared for the purpose of allowing him to reallocate funds to the building of his magical wall, after Congress refused to appropriate as much money as he wanted for that purpose. It’s not at all clear how Trump’s planned “emergency” reallocation comports with this provision of the Constitution.

Article II states, “The executive Power shall be vested in a President of the United States of America.” Section 1 of this Article exclusively deals with how to choose the President, defining the composition and function of the electoral college (which got changed early on with the twelfth amendment after the election of 1800 rendered the original method completely unworkable) and the requirements to serve as President.

Section 2, notably much shorter than Article I, Section 8, defines the powers of the President. This section contains important information for understanding the separation of powers. The Constitution achieves the separation of powers by assigning specific powers to different branches. We have seen that it assigns the power to legislate to the legislative branch and the power to execute to the executive branch (Article II, Section 3 states, almost as an afterthought, that the President “shall take Care that the Laws be faithfully executed;….”). But, in order for the separation of powers to have its intended effect — ensuring that no one branch, or individual holding office in that branch, becomes too powerful — the powers cannot be completely separate. They have to overlap. Article I, Section 7, in defining how Congress shall pass laws, provides that every Bill that passes both Houses of Congress, shall “be presented to the President of the United States,” who has the option of approving or disapproving (vetoing) it. So the power to legislate overlaps the legislative and executive branches, although the legislative branch does have the final say because it has the power, with a two thirds majority vote in both Houses, to override the President’s veto.

Article II, Section 2, continues this theme. It starts by defining the President as Commander in Chief of the Army and Navy (and of the Air Force, by logical extension, which did not exist in 1789), and of the Militia of the several states when they get called into federal service. He also has the power to grant “Reprieves and Pardons for Offences against the United States, except in cases of Impeachment.”

In the next paragraph, the Constitution grants to the President the power to make treaties, and to appoint ambassadors, “other public Ministers and Consuls, judges of the supreme Court,” and any other officials Congress may establish by law, but in exercising all of those powers, he must get the approval of the Senate, by two thirds majority in the case of treaties. That is, in exercising some of his most important powers, the President has to get approval for his decisions from the Senate. Separate, but overlapping, powers.

Article II, Section 4 reads, “The President, Vice 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.” Ahem.

People who study these matters often refer to the Judicial as “the least dangerous branch,” and that at least partly because, unlike the legislative and executive branch, they only act on problems people bring to them using a very specific set of rules. Also, federal judges do hold their positions “on good behavior,” meaning for life unless they get caught engaging in criminal conduct, but they have no power to create laws or to force adherence to their orders. They rely on law enforcement officers from the executive branch for that purpose. In terms of separation of powers, however, federal judges do have the greatest power in the lot, in that they can declare a statute or an executive order to violate the Constitution and stop its enforcement nationally in doing so, as Trump learned to his chagrin when multiple federal judges enjoined, or stopped, enforcement of his Muslim ban at the beginning of his presidency.

The current reason to remind ourselves of the separation of powers is that Donald Trump is busy ignoring the concept, or the ultimate justification for separation of powers, ensuring that no branch or person becomes too powerful.

In fact, the separation of powers seems almost designed with Trump in mind, although it seems impossible that the Founders could have conceived of a man like Trump ever becoming President.

Again, the Constitution nowhere explicitly states the concept of separation of powers, but we know the Founders intended the structure of the Constitution, and of the federal government, to reflect and operate on the principle. We also know that they hoped to avoid having a federal government that was too powerful, which they tried to achieve with any number of mechanisms that Trump does not understand.

An important source of Trump’s problems at the moment is the Oversight Committee in the House of Representatives. This might encapsulate Trump’s presidency entirely so far. The Committee has existed for a very long time, and the concept, that Congress has the power to oversee the rest of the government, is implicit in its power to legislate, since, in addition to having the power to write statutes that govern the conduct of all persons who act under the jurisdiction of the Constitution, it also has the power to define important parts of the government itself, and only more so in the post New Deal government, with its increased use of administrative agencies, which exist only because Congress chooses to create them and exercise rule making authority only because Congress chooses to grant it to them.

There is also the famous “power of the purse.” We have seen that the federal government may only expend funds on authorization from an appropriation that Congress has enacted. It is an obvious, eternal rule of human activity that anyone who pays for an activity has significant power to determine how that activity gets carried out.

Trump, by contrast, seems to have lived his life so free of oversight that it is surprising he is toilet trained. He foolishly seems to see the power of the president to be entirely unfettered when it is actually closely bounded by the rules of the Constitution and the requirement that he interact with Congress to accomplish most anything. This was not a problem so long as member of his Party, the Party of Party loyalty above all else, controlled both Houses of Congress, but now that citizens have elected a Democratic majority to the House of Representatives, Trump finds himself subject to real oversight, apparently for the first time in his life.

He clearly does not like it. He has ordered his toadies not to testify before House committees, even in the face of subpoenas. He has filed suit against both the House Oversight Committee and financial institutions he has done business with to prevent the financial institutions from complying with subpoenas from the Committee for Trump’s financial records.

In sum, Trump’s response to the separation of powers and the entirely legitimate, well established oversight practices of the House of Representatives by throwing a litigious temper tantrum.

This is, of course, entirely typical of Trump’s militant ignorance of the job he now has.

Written by

Uppity gay, Buddhist, author, historian.

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