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When a system of

cess is defined by growth in size and scope. Is

Introduction

it any wonder that at this point in the 20th

checks on power--

century, which has been dominated by the

pitting power

idea of "good government," the president of

There can be no liberty where the

against power--

the United States is seen more as the chief

legislative and executive powers are

executive of America, Inc., than as a person

united in the same person, or body of

ceases to function

charged primarily with the limited duty of

magistrates.

in an adversarial

seeing "that the Laws be faithfully executed"?

--Montesquieu

Nowhere is that transformation more

way and functions

When America's Founders gathered to  clear, perhaps, than in the growth of presi-

instead "coopera-

draft a new constitution for the nation, they  dential lawmaking, which is an obvious

tively"--with each

were especially mindful, from long study and  usurpation of both the powers delegated to

recent experience, of the need to check govern-  the legislative branch and those reserved to

unit working

mental power if the rights and liberties of the  the states. To warn against that prospect,

hand in hand

people were to be secured--which the  James Madison, in Federalist 47, quoted

Declaration of Independence had made clear  Montesquieu on the peril of uniting in the

with the others--

was the purpose of government. Thus, they  same person legislative and executive powers.

government nec-

instituted a plan that divided powers between  Yet, all too often in the modern era that con-

essarily grows.

the federal and the state governments, leaving  flation of powers has occurred--and the loss

most powers with the states and the people, as  of liberty, against which Montesquieu

the Tenth Amendment would soon make  warned, has followed.

A few examples from the current adminis-

explicit. And they separated the powers dele-

gated to the federal government among three  tration will serve initially to illustrate the

distinct branches, defined essentially by their  problem and should serve as well to show

how our liberties are at risk as long as

functions--legislative, executive, and judicial.

The basic Madisonian idea was that power  Congress, the courts, and the states fail to

would check power. The states would check  exercise their constitutional responsibilities

abuses of federal power and the federal gov-  to check the growth of presidential power.

ernment would check abuses of state power.  We will then trace the theory and history of

Similarly, because the three branches of the  the problem in order to show that there are

federal government were defined and  constitutional restraints on presidential

empowered with reference to their respective  power available to those charged with assert-

functions, each branch would check efforts  ing them, if only they would do so. We will

by the other branches to enlarge or abuse  next show that, almost from the beginning,

but especially in our own century, those

their powers.

Not surprisingly, that system of checks  restraints have not been used. Finally, we will

and balances works to limit government only  look at two cases in which the courts did

insofar as each unit in the system under-  limit presidential attempts to rule through

stands its responsibilities and carries them executive order or national emergency and

out. When a system of checks on power--pit-  two efforts currently before Congress that are

ting power against power--ceases to function  aimed at doing the same.

in an adversarial way and functions instead

"cooperatively"--with each unit working

hand in hand with the others, pursuing  President William Jefferson

"good government" solutions to human

Clinton

"problems"--government necessarily grows.

Since there is no end to the problems govern-

In December 1998, Rep. Ileana Ros-

ment thus transformed might address, gov-  Lehtinen (R-Fla.) rose on the floor of the

ernment becomes like a business, where suc-  House to observe that

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