Abuse of Separation of Powers: A Long-standing Evil

It is a common misconception that our founders had no Bill of Rights before 1776. They, in fact, had their own – the English Bill of Rights of 1689. In this document grievances against King James II were listed, just as grievances against King George III would be listed in the Declaration of Independence 87 years later. Among those grievances was the following:

“By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without the consent of Parliament;…”

The King was overstepping his authority and bypassing Parliament – the lawmaking body. In 1689, the British people saw this as an attempt to completely destroy liberty. In our system of government, Congress is the lawmaking body. For the Executive to take up the power of making laws is for that Executive to engage in an act of tyranny.

Separation of Powers Essential to Liberty

One of the most fundamental characteristics of our Republic is the Separation of Powers among the three separate branches of government. The checks and balances in the American system were instituted for the express purpose of combating the rise of a tyrannical and oppressive government.

James Madison points out in Federalist 47 that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

Federalist Papers 47 through 51 deal specifically with this issue of separation of powers. The debate of the time was not whether these branches SHOULD be separate, but to WHAT DEGREE they should be separate. Madison begins by pointing out that all Founders understood that a separation of the three branches of government was necessary to preserve Liberty. They all agreed that the accumulation of all powers by one person or a single group of people is the very definition of tyranny. “Where the accumulation of power is possible, no further argument is necessary” to support a division and separation of those powers. Madison declares:

“…by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. “

No Branch is a Ruler Unto Itself

Madison further explains that the branches are not completely separated, but where one has any authority over the other that authority is very specific, and that the separate responsibilities of one are not to be usurped by the other. Hence, law making authority is invested solely in Congress and may not be taken up by the Executive. Yet, checks have been invested in each to ensure that one body does not become tyrannical and oppressive. The executive has its veto, the Legislative has its impeachment power and the Judiciary has its legal oversight…and don’t forget the people.

Notice how Madison describes the necessity of these checks:

”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. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government.”

Madison continues:

“But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

So, if such strong checks were and are necessary to resist the tyranny of men, then why are these checks not being employed? Consider the following overreach by our current tyrannical Executive:

1. In May Democrats put forward the Dream Act. Before a vote was even held, Obama passes the Dream Act through Executive Order.

2. “Cap and Trade” legislation was defeated in Congress, yet President Obama pushes his agenda into law through the EPA, an executive branch agency.

3. Obama signs an Executive order on July 12 restricting the 2nd Amendment rights of citizens in the southern border states of Texas, California, New Mexico and Arizona.

4. Obama’s FCC decided last year to assume authority over the internet regulation despite a ruling by a federal appeals court explicitly denying the commission that authority. In contradiction to the court’s ruling FCC voted 3-2 in December to pass the first ever federal regulations on internet traffic.

5. Obama unilaterally decided he should declare war on Libya. When Congress disagreed, he simply ignored them, their lawsuit, and the War Powers Act which is just a restatement of the separation of powers that already exists in the Constitution.

6. On January 28, Transportation Security Administration (TSA) head John Pistole announced that the Screening Partnership Program, which allows airports to privatize their security procedures, would no longer be available. TSA’s decision is directly contrary to the Aviation and Transportation Security Act of 2001, which statutorily grants this ability for airports to privatize.

7. Rather than push Congress to repeal federal laws against Marijuana, the Justice Department decided in 2009 that it would simply stop enforcing the federal laws. Proposals to legalize Marijuana at the federal level consistently fail, but that has not stopped the Obama administration.

8. The Department of Justice has announced that they would no longer enforce the Defense of Marriage Act. The Administration did not agree with the law, so they simply ignore it.

9. Congress removes the card check provision from the Employee Free Choice Act to maintain the rights of the people to choose not to unionize. The National Labor Relations Board moves to reduce the length of time for elections in order to limit employer’s ability to present their own case against unionization, having the effect of overriding Congress and limiting the people’s choice to not unionize.

10. Obama Administration suggests that they could ignore Congressional authority and raise the Debt Ceiling unilaterally by reinterpreting the 14th Amendment. Now Mitch McConnell apparently wishes to surrender the Constitution to the President, rather than protect it from ALL enemies foreign AND DOMESTIC.

Following the November elections where President Obama’s party lost control over the House Obama told America, where he cannot legislate he will regulate. The Executive Branch is not the law making body of our Constitutional Republic. In 1689 and in 1776 this type of overreach was seen as tyranny; an attempt to completely destroy Liberty.

In the Federalist Paper 69, Hamilton responds to those who fear that the executive branch looked too much like a king and would have too much power. He points out a very vital and distinct difference that would put the minds of the people to rest:

“…there is not comparison between the intended power of the President and the actual power of the British Sovereign. The one can perform alone what the other can only do with the concurrence of the branch of the legislature.”

What is our reassurance as the President does exactly what Hamilton assured could not be done? Where is our protection as in the Supreme Court decision in 1952 (Youngstown Sheet & Tube Co. v. Sawyer) that ruled President Truman’s executive order unconstitutional as he attempted to place all steel mills under federal control. The Supreme Court said executive orders cannot make law. More importantly in the Colonial Constitutions this was the very behavior that drew IMPEACHMENT time and time again.

History and experience prove that Obama’s attempts to completely destroy liberty must be stopped. Congress must override these executive orders with proper legislation. Congress must exercise Congressional oversight over these Executive agencies and defund them. Congress must begin the impeachment process and end this unconstitutional usurpation by the executive branch.

So, I ask you again Congress when will you do your job?

KrisAnne Hall Is a Constitutional Attorney and former prosecutor with the 3rd Judicial Circuit Court.

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