Separation of Powers

The U.S. Constitution establishes three branches of government: executive, legislative, and judicial. The President leads the executive branch, enforcing laws, commanding the military, and conducting foreign policy. The legislative branch, composed of the House of Representatives and the Senate, makes up Congress. Congress creates laws, declares war, raises and collects taxes, and performs other key functions. The judicial branch, headed by the Supreme Court, interprets the laws and ensures they align with the Constitution through judicial review.

This separation prevents any single branch from overwhelming the others. The President can veto laws passed by Congress, but Congress can override the veto with a two-thirds vote. The President appoints judges, but these appointments must be confirmed by the Senate.

Chevron Deference allows executive agencies to interpret vague laws, potentially leading to an overreach of executive power. The upcoming Supreme Court case, Loper Bright Enterprises v. Raimondo, may reevaluate Chevron Deference's impact.

The Appointments Clause mandates that officials with significant power must be nominated by the President and confirmed by the Senate, ensuring accountability through elected representatives.

In-house tribunals, used by agencies for adjudication, often operate without established rules and lack the impartiality of real courts. Without juries, these tribunals provide no check on judges and prosecutors.

The Major Questions Doctrine reassures us that Congress must clearly authorize significant economic or political regulations. This doctrine was pivotal in Biden v. Nebraska, where the Supreme Court ruled against the Department of Education's attempt to erase student loan debt under the HEROES Act.

Iraq's Constitutional Court has moved away from being a legal safeguard to becoming a political tool, weakening its federal system. This misalignment is evident in the unconstitutional establishment of courts and recent rulings that tilt balance towards dominant factions.

Checks and balances remain central to preventing tyranny. The U.S. Constitution offers mechanisms to pull back on any one branch's power, and it's our responsibility to use these tools well and preserve the intended equilibrium.

Mechanisms

The presidential veto allows the President to reject legislation passed by Congress, preventing it from becoming law unless Congress can override the veto with a two-thirds majority in both the House and Senate. This ensures that no hasty or ill-considered legislation becomes law without considerable support and deliberation.

Congressional oversight acts as a pivotal check on the executive branch. Through hearings, investigations, and the power of the purse, Congress can monitor, influence, and restrict the activities of the executive branch. The House Oversight and Reform Committee can summon executive officials to testify under oath, ensuring transparency and accountability.

Judicial review allows the judiciary to interpret the Constitution and overturn laws or executive actions that are found to be unconstitutional. By scrutinizing the executive and legislative branches, the judiciary safeguards civil liberties and maintains the integrity of the Constitution.

The Senate's role in confirming presidential appointments prevents any unilateral imposition of power within the executive branch. The power of impeachment and removal exemplifies the reciprocal checks among the branches. The House of Representatives can impeach federal officials, while the Senate conducts the trial and can remove them from office with a two-thirds vote.

The power to declare war is reserved explicitly for Congress, preventing the executive from unilaterally engaging in military conflicts without legislative approval. Beyond these constitutional mechanisms, various laws and regulations further embed checks into the system, such as the War Powers Resolution of 1973 and the Budget and Impoundment Control Act of 1974.

Effective checks and balances require active participation and vigilance from all three branches, as well as from the American populace. The Founding Fathers designed this system to be dynamic, adaptable, and resilient, ensuring that no single entity could dominate the governance of the Republic.

Threats to the Separation of Powers

One significant contemporary threat to the separation of powers is executive overreach, exemplified by the growth of the administrative state. Executive agencies have accumulated powers that traditionally belong to the legislative and judicial branches. Chevron Deference, established by the Supreme Court's ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), instructs courts to defer to an agency's interpretation of ambiguous statutes within its purview, provided the interpretation is reasonable.¹ While initially intended to expedite the implementation of complex regulations, Chevron Deference has effectively allowed agencies to assume Congress's lawmaking role.

This deference undermines legislative accountability, as lawmakers can vaguely draft laws and leave detailed rules to be interpreted by unelected officials. Justice Neil Gorsuch points out that such deference leads to a troubling abdication of judicial responsibilities.² The upcoming Supreme Court case, Loper Bright Enterprises v. Raimondo, presents an opportunity to reassess and possibly overturn this doctrine, reasserting the judiciary's role in maintaining constitutional balance.

Another issue threatening the separation of powers is the rise of in-house tribunals. These quasi-judicial bodies within administrative agencies adjudicate disputes according to agency-specific rules, often bypassing the traditional court system. These tribunals combine prosecutorial and judicial functions in one body, violating the principle of impartiality that upholds the judiciary. Without the established safeguards of procedure and evidence that govern regular courts, these tribunals can become tools of executive overreach.

The absence of a jury in these in-house tribunals further exacerbates the problem. Juries serve as a fundamental check on judicial and prosecutorial power, ensuring that the community has a role in the administration of justice. The removal of this crucial check shifts the balance of power decidedly to the executive, subverting the intended equilibrium among the branches of government.

The Executive's tendency to address major questions of economic and political significance without clear congressional authorization is increasingly prevalent. The Major Questions Doctrine, recently revitalized by the Supreme Court, maintains that issues of substantial importance must be clearly sanctioned by Congress. The Court's decision in Biden v. Nebraska nullified the Department of Education's extensive forgiveness of student loans under a tenuous interpretation of the HEROES Act,³ underscoring that such significant decisions require unequivocal legislative approval.

These threats to the separation of powers underscore the urgent need to reinforce our constitutional safeguards. Robust checks and balances are essential to prevent any single branch from accumulating excessive power. Vigilance and corrective measures are crucial to preserve the freedoms that the U.S. Constitution protects.

Constitutional Tools to Reinforce Checks and Balances

The Appointments Clause is a cornerstone provision in maintaining the delicate balance of power among the branches of government. It ensures that appointments to positions of significant authority within the federal government receive scrutiny and consent from multiple branches. ¹ Article II, Section 2 of the U.S. Constitution specifies that the President nominates officials and the Senate confirms them, creating a dual-consent process that prevents the executive branch from unilaterally filling key positions. This system of checks promotes transparency and accountability, aligning with the republican principles of governance.

The Major Questions Doctrine plays a critical role in preserving the separation of powers by demanding that significant regulatory decisions, especially those of vast economic or political impact, be clearly authorized by Congress. This doctrine asserts that agencies cannot assume broad regulatory authority unless explicitly granted such power by the legislature. This is fundamental in preventing executive overreach, compelling agencies to stay within boundaries set by the legislative branch. In Biden v. Nebraska, the Supreme Court relied on this doctrine to prevent the Department of Education from enacting sweeping student loan forgiveness measures under ambiguous statutory authority, underscoring the necessity of clear legislative instructions for significant regulatory actions. ²

The Constitution's provision for judicial review serves as a vital tool in maintaining the balance of power. Through Marbury v. Madison, the judiciary has the authority to assess the constitutionality of legislative and executive actions, ensuring that no branch exceeds its granted powers. This judicial check provides a mechanism for the courts to invalidate laws and actions that transgress constitutional boundaries, preserving individual liberties and preventing tyrannical governance. ³

The Non-Delegation Doctrine stems from the principle that legislative powers granted by the Constitution cannot be transferred to another branch. This Doctrine ensures that Congress cannot delegate its lawmaking responsibilities wholesale to executive agencies, preventing the blurring of lines between the legislative and executive branches. Instances where the Supreme Court has invoked this doctrine, though rare, reflect its potential to curtail excessive delegations of legislative power and reinforce the separation of powers. ⁴

The War Powers Resolution of 1973 exemplifies a statutory attempt to reassert Congressional authority over military engagements. By requiring the President to notify Congress within 48 hours of deploying military forces and limiting the duration of such deployments without Congressional approval, the Resolution serves as a check on the executive's command as Commander-in-Chief, ensuring that significant military actions reflect collective national will through elected representatives. ⁵

The Impoundment Control Act of 1974 represents another legislative effort to enforce checks on executive power, specifically the President's control over federal funds. By restricting the President's ability to unilaterally withhold appropriated funds, the Act reinforces Congressional authority over the federal budget, ensuring the executive adheres to legislatively determined fiscal policies. ⁶

The Constitution's explicit provision for the impeachment and removal of federal officials provides a check against abuse of power. This process ensures that high-ranking officials, including the President, are held accountable for "high crimes and misdemeanors." The dual responsibility, with the House of Representatives holding the authority to impeach and the Senate conducting the trial, underscores the seriousness of this tool, ensuring it is exercised judiciously and with broad support. ⁷

Finally, the requirement for periodic elections serves as the ultimate check in a republican system of government. By mandating regular elections for the House, Senate, and Presidency, the Constitution ensures that those in power remain accountable to the electorate. This electoral mechanism operates as a continuous and dynamic means of checking power, enabling the populace to voice their approval or disapproval of governmental actions. ⁸

These constitutional tools collectively form a framework designed to maintain a balanced distribution of power among the branches of government. Each tool reflects the philosophical underpinnings of a system built to guard against tyranny, entrusting different powers to different branches and ensuring accountability through a web of checks and balances. This intricate design showcases the foresight of the Founding Fathers, whose commitment to liberty and republicanism continues to guide and protect the governance of the Republic.

Case Study: Iraq's Constitutional Crisis

Iraq presents a sobering case study on the dangers of a collapsing separation of powers, which contrasts with the framework designed by our Founding Fathers. Once envisioned to serve as a federal constitutional democracy, Iraq's current trajectory underscores the necessity of maintaining a rigorous system of checks and balances to safeguard liberty and prevent authoritarianism.

The backbone of any constitutional democracy is its judiciary, designed to act as a bulwark against overreaches by the other branches of government. In Iraq, however, the Federal Supreme Court (FSC) has deviated from this foundational role. Instead of serving as an impartial arbiter, it has morphed into a political instrument that frequently oversteps its boundaries, compromising the principles it was intended to uphold. ⁹

The FSC was established under Law No. 30 of 2005, intended as a temporary measure preceding the establishment of a permanent court through the Iraqi Constitution. However, the required permanent legislation never materialized, resulting in a court that operates on unstable legal grounds. ¹⁰

The 2021 amendment to the FSC's establishment, through Law No. 25 of 2021, aggravated the situation. Passed by a simple parliamentary majority, this amendment violated constitutional mandates requiring a two-thirds supermajority for such changes. This disregard for constitutional processes has weakened the court's authority and underscored its susceptibility to political manipulation. ¹¹

The imbalance is visible in the FSC's recent rulings, which have extended beyond the legitimate scope of legal challenges to serve political ends. The court's decision to declare the Kurdistan Oil and Gas Law unconstitutional reflects a capitulation to political pressures rather than a commitment to legal principles. The court's composition, heavily influenced by dominant political factions, ensures that its rulings often favor the federal government at the expense of regional autonomy, creating a centralization of power. ¹²

The politicization is evident in the court's inconsistent application of legal principles. In some cases, the FSC has intervened prematurely, striking down legislative drafts before they become law. Conversely, it has allowed clearly unconstitutional statutes to remain unchallenged post-enactment due to political expediency. ¹³

The absence of a jury system in the court's adjudication process further undermines the judiciary's integrity. Juries serve as a critical check, reflecting community standards and providing a mechanism for public accountability within the judicial process. The FSC's operations, devoid of this check, increasingly resemble unilateral decrees rather than balanced judicial deliberations. ¹⁴

The consequences of this erosion are profound. The systemic imbalance has facilitated political factionalism, enabling dominant factions to manipulate legal processes to their advantage. This has included altering electoral outcomes and marginalizing elected officials who do not align with the prevailing political agenda. The resignation of Judge Abdulrahman Zebari, citing the court's overreach and political misuse, highlights the need for reform. ¹⁵

Iraq's experience provides a contemporary example of the chaos that ensues when the foundational checks and balances are disregarded. It serves as a cautionary tale, illustrating how the absence of a well-established and respected judicial authority can lead to a concentration of power, exacerbating political instability and undermining democratic governance.

The Founding Fathers of the United States, through the design of our Constitution, sought to prevent such a collapse. By investing in a balanced separation of powers fortified with effective checks and balances, they envisioned a resilient republic where no single branch could dominate the others. The importance of this design ensures the proper functioning of government and protects the liberties of the citizenry from the perils of concentrated authority.

The cautionary example of Iraq underscores the necessity of vigilance in maintaining the integrity of these principles. The United States must remain committed to upholding the checks and balances that are the hallmark of our constitutional republic. This dedication preserves our freedoms and reaffirms the wisdom of our Founding Fathers, whose vision continues to guide and protect our nation.

The preservation of our constitutional republic hinges on maintaining the balance of power envisioned by the Founding Fathers. The mechanisms of checks and balances are vital in preventing tyranny and ensuring that no single branch can dominate. Vigilance in upholding these principles is essential for safeguarding the freedoms that define our nation.