When at Times the Mob Is Swayed

by Burt Neuborne

  Fortunately, the Founders did not go down the absolute-power path. A second path, our own, seeks to eliminate the very idea of absolute governmental power vested in a single person by dividing the functions of government among multiple power centers. Unlike the absolute-power approach, which offers a romantic promise of quick justice and ruthless efficiency, separation of powers is selfconsciously inefficient. It treats government power like a dangerous bomb capable of exploding in ways that can cause immense harm to individuals and the society.

  To limit foolish or dangerous eruptions of government power, the formula for the government bomb is cut into separate pieces (or powers), with each group of officials given access to only one part of the formula. The hope is to make it impossible for a single runaway official (aka Donald Trump) to set the bomb off by himself.

  In order to make such a cautious system of government work, the Founders had to complete two important tasks—identifying the functions of government; and deciding how to separate them. Let’s start with identifying the functions of government.

  In 1787, when the Constitution was written, separation of powers was already a well-traveled idea. The traditional British version of separation of powers, designed to curb the power of the king, divided the idea of government into two functions: the power to make new laws and the power to carry out existing laws. Parliament (divided into a House of Commons, controlled by the emerging wealthy merchant class, and the House of Lords, controlled by the landed aristocracy) was given the exclusive power to make new laws, while the king and his men (they were always men) had exclusive power to carry out the laws.

  Judges weren’t seen as exercising a separate “power.” Rather, the lower court judges were lumped in with the king’s men, engaged in carrying out the laws made by Parliament, while the high court judges sat as a committee of the House of Lords.

  To this day, British judges lack a separate power-holding status. That’s why British judges—even high court judges—still can’t challenge acts of parliament, such as press censorship laws, as violations of Britain’s unwritten constitution.

  Inspired by Montesquieu, the Founders pushed beyond the British model. Instead of stopping at two powers—the power to make new law and the power to enforce the law—the Founders added a third function of government: the power to resolve disputes (the Founders called them “cases or controversies”) over exactly how the law applies in a particular setting. The Supreme Court calls it “the judicial power and duty to say what the law is.” It’s where the power of judicial review comes from.

  Once they had identified the three functions or powers of government, the Founders then decided which government officials should be empowered to carry out what power. They used two basic formulas. First, they made sure that no single official or closely connected set of officials could exercise more than one function (or power). They called that the principle of negative separation. Under negative separation, it doesn’t matter who gets to exercise the power in question as long as the official doesn’t also control another power. You get to exercise only one power.

  Then they allocated each function (or power) to the government officials who were likely to carry out the function well. That’s called the principle of positive separation. So, as with the British model, the exclusive power to make new law was given to the legislative branch—a large, bicameral, popularly elected national legislature capable of navigating the complex trade-offs and compromises needed to make the law for a disparate, populous nation.

  The power to enforce the law was given to the executive branch, headed by the president, a single person indirectly elected by the Electoral College, capable of engaging quickly in robust and efficient action to carry out Congress’s will.

  Finally, the new power to resolve “cases and controversies” was given to a judicial branch, headed by the chief justice of the Supreme Court, made up of life-tenured judges nominated by the president and confirmed by the Senate, capable of accurately ascertaining and applying the rule of law without fear or favor.

  In setting up their version of separation of powers, the Founders were obviously doing three things—negatively treating the power of the national government like a dangerous bomb, much too lethal to be entrusted to a single person or branch; positively allocating each of the three separated powers to officials who were organized to allow them to carry out those powers independently and well; and, finally, providing the politically vulnerable with access to a level playing field in the federal courts through the process of judicial review. It’s an elegant, if cumbersome machine.

  The Founders’ complex separation-of-powers machine works well, though, only if the underlying mechanisms of democracy are also working well. If large numbers of poor voters of color are disenfranchised; if representative democracy breaks down in the Senate because voters in rural, predominantly white states are radically overrepresented compared to voters in urban, more diverse states; if representative democracy breaks down in the House because rampant partisan gerrymandering makes it necessary for Democrats representing urban constituencies to win the national legislative elections by more than 10 percent in order to secure a majority in the House; and if democracy breaks down in the Electoral College because its membership is skewed to favor states with smaller, rural, white populations, resulting in the repeated election of presidents who lost the national election by millions of votes, separation of powers won’t work very well, either.

  As with everything else that ails American democracy, therefore, the remedy must begin with repairing the cracks in the pillars of democracy. While the democracy repair work is going on, though, it’s important to concentrate on making separation of powers function as well as it can, especially in an era with a power-obsessed president who seems to recognize no limits to his overweening ambition. Two recurring problems will arise.

  First, what happens when the Founders’ negative separation, or the refusal to give an official too much power, conflicts with their positive separation, the allocation of power to officials most likely to perform it well? Deciding who has power to initiate military combat is a classic point of tension between positive separation theorists, who stress the need for immediate, decisive action by the president to avert a national security crisis, and negative separation theorists, who, worried about the ability of a single person to plunge the nation (and the world) into nuclear war, insist on both congressional and presidential cooperation before launching America’s military might.

  How should the “war power”—the power to use lethal force abroad—be allocated when values of negative and positive separation collide? It’s clear that the Founders tried to follow both classic negative and positive separation-of-powers rules in allocating the war power. Article I, Section 8, gives the power to declare war to Congress, while Article II gives the power to act as commander in chief of the armed forces to the president. Thus, Congress decides whether to change the military status quo by authorizing the use of lethal military force, while the president decides how to deploy and use the military force.

  But what happens when the president decides on his own to launch missiles against Syria, to send hundreds of thousands of troops to Vietnam, or to wage a never-ending worldwide war against terrorism in Afghanistan, Yemen, and who knows where else, without congressional authorization? And what happens if he decides to up the military ante by using nuclear weapons? Must Congress authorize such use of military force abroad? What form should such an authorization take? Must the authorization precede the use of force? What about defensive emergencies? Who gets to pull the nuclear trigger? And what is the role of the Supreme Court in enforcing the separation of powers against the president’s allegedly unconstitutional unilateral use of lethal military force?

  The Supreme Court has consistently ducked the war powers issue. The justices never summoned the will to pass on the constitutionality of the undeclared Vietnam War. The Court’s timidity has vested virtually uncontrollable de facto power in the pr
esident as commander in chief of the armed forces. I believe that it verges on the suicidal to grant the unilateral power to end life on earth to a man as flawed and mentally unstable as Donald Trump. If you do only one thing to defend separation of powers in the time of Trump, contact your senators and congressional representatives and implore them—no, direct them, on pain of being denied reelection—to stiffen congressional limits on unilateral executive power to make war, especially nuclear war.

  Another point of tension between negative and positive separation of powers is the modern, post–New Deal administrative state itself. As we’ve seen, the Founders created a government machine with three parts—legislative, executive, and judicial—and gave each part one (and only one) power. Where do administrative agencies such as the Securities and Exchange Commission, the National Labor Relations Board, or the Federal Communications Commission fit into the Founders’ tripartite structure?

  The story we tell ourselves is that, as a matter of both negative and positive separation, the administrative agencies are just part of the presidentially supervised executive branch, with the duty to enforce the laws made by Congress, subject to judicial review by the federal courts.

  But then we interfere with the president’s power to appoint or remove administrative officials, allow Congress to enact a vast body of laws that are so ambiguous that they fail to give administrative official guidance on how to act, and strip the federal courts of the power to exercise judicial review over large aspects of the administrative state. The net result is the slow emergence of a “fourth branch” of government, staffed by unelected administrative officials who make new rules, adjudicate disputes, and enforce regulations free from effective judicial supervision.

  Defenders of the administrative state argue that in the modern world, we need the expertise, independence, and sheer bulk of the administrative agencies to govern effectively in an immensely complex world, even though that means vesting administrative officials with more than one power. Opponents argue that vesting unelected officials with the complete power of government is the road to tyranny.

  Unlike the war powers debate, which has a single right answer—enforce negative separation against the president—the disagreement over the administrative state requires a more nuanced analysis, though one that is not beyond the capacity of ordinary folks. In the end, it’s up to you—not nine Platonic guardians on the Supreme Court—to decide whether negative separation-of-powers principles should be bent in order to permit administrative agencies to function as efficient regulators of big business. That’s a hard question, but it’s too important to leave the answer solely to judges, lobbyists, and politicians.

  The second recurring problem is distinguishing the making of a new law (which must be done by Congress) from simply changing the way an old law is interpreted or enforced (which can be done by the executive). For example, when President Obama announced that he would no longer enforce the immigration laws against the more than one million Dreamers but would instead issue executive regulations regularizing their immigration status, was the president unilaterally making a new law in violation of the separation of powers or simply making executive choices about how existing immigration laws should be implemented and enforced?

  Don’t feel too bad if you find it hard to answer the question. The Supreme Court split 4–4 on it. Surprise: the Court’s four Democratic justices backed President Obama, and the Court’s four Republican justices opposed him. (Want to bet what Brett Kavanaugh will do?)

  Ideally, the answer should not depend on whether you agree or disagree with the president’s policies or whether you happen to support the president who happens to be in the White House. If separation of powers is simply a proxy for a justice’s political preferences, we might as well stop pretending that the doctrine does any real work except to license political support for or opposition to a sitting president. I believe there is a more value-neutral way to approach hard separation-of-powers issues like the Dreamers without getting trapped in the definitional or partisan swamp.

  Rather than agonizing over the metaphysical question of whether a challenged action is essentially law-making or law-enforcing, I find it helpful to go back to my seventh-grade civics notes about why we adopted separation of powers in the first place. The core value at the heart of separation of powers is keeping any single official from getting dangerous unilateral control of the throttle on the democracy train. For me, therefore, the key to evaluating a separation-of-powers decision is to ask whether, when the smoke clears, a single official or branch is seeking to assemble and exercise two or more of the three separated powers in ways that vest that official or branch with dangerously concentrated power.

  If the answer is yes, I would not budge from a finding of unconstitutionality, even if officials argue that it would be much more efficient to vest more than one of the powers in a single person. Under my (perhaps overly) simplified approach, it doesn’t matter which branch is trying to exercise more than one power. So back in 1952, when President Truman unilaterally ordered nationalization of the nation’s steel mills during the Korean War to head off a steel strike that had potentially disastrous military consequences, his own Supreme Court appointees forced the president to back down because he was asserting the dangerously concentrated power to make a new law about how to deal with disruptive strikes during wartime, as well as the power to enforce the new law by military force.

  Similarly, when President George W. Bush’s lawyers argued that Congress could strip the federal courts of power to resolve legal challenges (called writs of habeas corpus) filed by detainees at the United States military prison at Guantánamo Bay, Cuba, the Supreme Court refused to allow Congress to exercise both the power to enforce the laws and the power to resolve disputes about the law’s meaning and application.

  When Congress enacted a campaign finance law granting the power to appoint four of the six members of the Federal Election Commission to ranking members of Congress, the Court struck down the law because Congress was seeking the dangerously concentrated power to make a new law while retaining significant control over its enforcement. And when Congress sought to pass resolutions vetoing administrative regulations with which it disagreed, the Supreme Court struck down the congressional vetoes because, having made a new law, Congress was seeking a dangerously concentrated power to keep a finger on decisions about how to enforce it.

  Finally, when federal judges claimed power to create judge-made crimes, or to make new federal common law in noncriminal cases, the Supreme Court correctly said no on both occasions because it would have given federal judges both a dangerously concentrated power to make new laws and the ability to resolve disputes about the laws’ meaning and applicability.

  That’s the classical negative separation model in operation: check to see whether a single official is exercising at least two of the three powers in ways that generate a potentially dangerous concentration of government power in a single group of officials, and if so, blow the whistle and don’t back down. And it shouldn’t matter whether or not you agree or disagree with what the government is trying to do.

  My seventh-grade civics notes end here. Frankly, the law could do worse than end here, too. Unfortunately, though, we can’t wrap up where my 1953 notes run out. It’s more complicated today because the classical tripartite vision of separation of powers embraced by the Founders over two hundred years ago has suffered more than a few dents over the years.

  Most dramatically, as I’ve noted, since the New Deal of the 1930s, multiple newly minted executive agencies such as the Securities and Exchange Commission and the National Labor Relations Board routinely promulgate new rules in the form of regulations implementing vague congressional statutes. These agencies also use in-house enforcement agents to enforce the agency’s regulations and, initially at least, resolve disputes over the facts and the meaning and applicability of statutes and rules in their own internal courts. By my count, that boils down to one group of executive
branch officials under the control of the president with power to exercise all three functions of government—a separation-of-powers nightmare.

  The Supreme Court seeks to maintain a modicum of separation-of-powers discipline over the post–New Deal administrative agencies by exercising judicial review over the constitutionality of administrative agency action. To that extent, the Founders’ original model has held. But, except in constitutional cases, judicial control over administrative agencies has atrophied. The truth is that Congress has given away much of its lawmaking power to the executive branch by enacting hundreds of ridiculously ambiguous statutes that delegate enormous discretion to the executive officials charged with enforcing them, and the Supreme Court lets Congress get away with it. Then, to make matters worse, the Supreme Court has decided to grant deference (there’s that word again) to the views of administrative officials about the scope and exercise of their vague statutory powers. That allows administrative agencies to, in effect, decide the limits of their own power to make new law. Finally, in non-Constitution-related settings, the Supreme Court has granted administrative agencies virtually unreviewable power to find the facts in disputed cases, virtually ousting the jury from the administrative process.

  The one-two-three punch of extremely vague congressional authorizations, judicial deference to an administrative agency’s interpretations of vague laws, and transfer of much of the judiciary’s fact-finding function to agency adjudicators has concentrated vast power in the executive branch, operating under the president’s supervisory thumb. The Time of Trump may be an ideal moment to begin rescuing the Founders’ vision of separated powers from the slow accretion of dangerously concentrated power in the executive branch.

  There’s nothing like an unstable president to generate sympathy for negative separation-of-powers doctrines that limit the president’s ability to exercise enormous executive power through administrative agencies. Maybe the Supreme Court should force Congress to provide more precise statutory guidance to administrative agencies. Maybe the justices should reassert the power to say what vague delegations of statutory power to administrative agencies really mean, instead of deferring to the agencies. Maybe the Court should subject fact-finding by administrative officials to review by a federal judge, or perhaps even a jury. Maybe it should do all three.