Understanding the separation of powers

Gary L. McDowell is the Tyler Haynes Professor of leadership studies, political science and law at the University of Richmond. His column in the Washington Times, Congress overreaches, is a good synopsis of the reasoning behind the separation of powers in the US government.

The reason the Framers so carefully crafted their scheme of separated powers was their fear not of executive overreach but of “legislative usurpations.” They had no doubts that history had shown time and time again the undeniable and unhealthy “tendency of the legislative authority to absorb every other.”

they knew that the fundamental cause of such legislative incompetence, imbecility and tyranny as they had witnessed was the result of there being no real executive power to keep the legislature in its place.

The legislature, by its very nature, must be a deliberative body characterized by “differences of opinion, and the jarrings of parties.” It is, by design, intended to produce an open and thorough consideration of the pressing issues of the day. Debate, not “promptitude of decision,” is the end sought. This is just the opposite from the executive branch. In the office of the president, the ends sought are not openness and debate but “decision, activity, secrecy and dispatch” — all the qualities a numerous assembly can never have.

Examples of “legislative usurpations” are easy to find but nowhere near as dramatic as those of ‘executive usurpations. Some who disagree with the current administration accuse it of arbitrary exercise of power, fascism, and trampling the Constitution. The opposition party has now taken its position to exercise ‘oversight’ to respond to these feelings by investigation into any allegation of the appearance of wrongdoing. The promise is that the next two years will be a continual circus of political disagreement being paraded as criminal or ethical lapse.

But at least these kinds of behaviors are only pushing boundaries, not exceeding them. When there is legislative usurpation you have the kind of socialism that currently plagues much of Europe. It is also interesting that the two most prominent examples of executive usurpation, Venezuela and Russia, derive from the manipulation of legislative action.

There is only so much that a process of the separation of powers can do to tamp the natural inclinations of the human spirit. It still requires the responsible behavior of the participants and the diligence of the populace to maintain and manage the system.

And then there are the courts …

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