Separation of Powers, R.I.P.

March 19, 1999 • Commentary

The one positive thing you can say about the recently concluded impeachment process is that the Constitution was given a degree of rhetorical respect rarely seen in Washington. Invoked passionately by both sides, debated endlessly on the floor and examined in almost Talmudic detail by pundits and prognosticators, the Constitution was solemnly acknowledged as the ultimate governing authority for congressional behavior. Now that our great national morality play is over, both the president and Congress can get back to the business of modern government: ignoring every single word of that document, including the “and“s and “the“s.

Consider the separation of powers, a fundamental constitutional doctrine cited almost religiously during the censure debate. That doctrine reflects James Madison’s concern 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.” The legislature may legislate, but it may not punish or prosecute — except as provided for in the impeachment process. Likewise, the main responsibility of the executive branch is “to take care that the laws be faithfully executed” (the heart of the presidential oath of office), but that branch may not make law (the exclusive prerogative of the legislature).

What then to make of the February 18 announcement that the Environmental Protection Agency would mandate strict new emissions standards for sport utility vehicles and light trucks and require oil companies to radically reformulate gasoline to reduce its sulfur content? Call it what you will, but EPA is legislating, defined by Black’s Law Dictionary as the “formulation of rule(s) for the future.” As if to underscore the fact that EPA has become a parallel legislature, a handful of House members introduced a bill on February 5 requiring exactly the same standards. In a “Dear Colleague” letter, the legislators wrote that, while the EPA has the authority to unilaterally make their bill law, their bill is “another venue” to enact those standards and would demonstrate support for the expected EPA regulations.

Madison’s admonition against concentrating legislative, executive and judicial power in a single body has been dismissed as a quaint 18th‐​century prejudice that, regardless of its merits, is incompatible with the modern state.

Or consider that, when the Federal Communications Commission decided on February 17 against requiring TCI to open its private cable lines to competitors, the National Journal’s Congress Daily reported that the FCC “punted” the issue to Congress. The Hill is “now the more likely avenue for action,” according to an industry source. Apparently, the FCC is the first place one goes to make telecommunication law, with Congress a second‐​best alternative if all else fails.

Or what can we make of federal banking regulations introduced last October to require banks and thrifts to investigate their customers’ identities and keep tabs on their transactions? House members this month introduced legislation to block the rule, but whether those bills will overcome procedural hurdles designed to curb the “facility and excess of law‐​making” (Madison’s words) is anyone’s guess. Regulators don’t have to worry about the procedural hurdles, such as feudal committee structures, elected bicameral legislatures or the threat of filibusters and vetoes, that confront legislators. The end result? Agents of the executive branch make law, and the Congress vetoes (a veto that can itself be vetoed by the executive lawmaker).

Or consider that, while the president and vice president advance various agendas to bring the federal government into the battle against “urban sprawl,” they apparently don’t need congressional approval to do so. On February 2, John DeVillars, the EPA administrative czar for New England (Region 1), declared that the agency would launch an aggressive “long overdue” campaign to oppose and reshape local infrastructure projects that contribute to urban sprawl. He also promised millions in federal grants to fund anti‐​sprawl advocacy groups — all without congressional budgetary approval. Whether Congress approves of federal involvement in local land planning disputes is apparently immaterial.

Or pause to reflect on the February 1 issue of Public Utilities Fortnightly, which featured an article on electric utility restructuring that asked the question, “Will inaction in the Senate and House prompt FERC to move ahead?” A Senate Energy Committee staffer was quoted as saying that FERC could well do so. “In 1983, when we tried to deregulate natural gas … the bill got out of committee but failed on the floor,” he said. “FERC went ahead and did it, order 436 and so forth. As a result of that, we never had to do anything on that issue.”

One could go on and on. The point is that the separation of powers doctrine lives today only in history books. Madison’s admonition against concentrating legislative, executive and judicial power in a single body has been dismissed as a quaint 18th‐​century prejudice that, regardless of its merits, is incompatible with the modern state. Of course, proponents of the regulatory state point out that Congress delegated all that power to the executive branch years ago and that no constitutional violation has occurred. But where did Congress find the authority to delegate its lawmaking power? Absolutely nowhere. As John Locke argued, the legislature “cannot transfer the power of making laws to any other hands, for it being but a delegated power from the people, they who have it cannot pass it over to others.”

The great liberal political scientist Thomas Lowi noted 30 years ago that our present form of government bears so little resemblance to the constitutional order that it should be thought of as “The Second Republic” of the United States. Most important changes in law are made by Mandarin bureaucrats, not elected representatives of the people. When Bill Clinton was asked what he learned from the impeachment hearings, he answered that he learned that “the Constitution is safe.” That, perhaps, was his biggest lie of all.

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