Headnote: The news cycle inspires twin effects: being overwhelmed by the noise and the sheer volume of terrible things to keep track of or letting it all fade to background noise and getting used to it, losing the ability to respond to outrages or horrors. In an attempt to keep those reactions at bay, I offer this series of reflections on major identifiable strands of the political crisis at hand and the challenges they pose to the principles of a free and open society.
The first will discuss the breakdown in the separation of powers and the rise of executive impunity. The second will look at nationalism, ethnonationalism, and racism. The third will consider the area of their overlap in observable policy: immigration, borders, refuge, and asylum. And the fourth will consider the theoretical connections between the two and how they reinforce each other.
“I have an Article II, where I have the right to do whatever I want as president.” President Donald Trump, July 23, 2019
The Supreme Court’s decision in July to allow the Trump administration to divert Pentagon funds budgeted for other purposes to the construction of a wall on the Mexican border was not the most important or dramatic moment of the week. It probably wasn’t even the most important or dramatic moment of the day; who can remember anymore? It pales in moral importance compared with either the proposal to cut the number of admitted refugees to near zero, or the ongoing regime of mass detention in inhumane conditions and family separation, or the proposed increase in fast-track deportations without judicial process or oversight when even now immigration officials seize and detain U.S. citizens, sometimes for weeks at a time.
But it stands out to me as a particularly clear moment when the assault on immigration, driven by an ideology of racist nationalism, intersects with the crumbling of the separation of powers and the falling away of constraints on the presidency. Legislative control over the “power of the purse” is a foundational principle of the separation of powers, and Congress has not only repeatedly refused to fund construction of a wall, but passed a resolution expressly disapproving of President Trump’s declaration of a state of emergency to allow himself to repurpose funds. Trump vetoed the disapproval, and an override failed. The Court’s precedent seems to decisively shift budgetary control to the executive, subject to legislative reclamation only with two-thirds majorities.
I will return to wall funding, detention by immigration agencies, and judicial oversight of deportations in the third part of this series, where I’ll discuss how the crumbling separation of powers and escalating racism and nationalism intersect and reinforce each other in immigration policy. In this essay and the next I mean to discuss each of those two aspects of the current crisis in turn.
The separation of powers in theory
The version of the separation of powers enshrined in the American Constitution — among legislative, executive, and judicial branches — was fully articulated just a few decades before the American founding, in Montesquieu’s Spirit of the Laws. (John Locke’s account from the previous century was quite different.) It is not simply an idea about different units of the government jostling with each other for power. Any suitably complex organization will have that. The KGB and the Red Army or the Gestapo and the SS fought bureaucratic turf wars in their respective states. We might even coherently talk about them checking and balancing each other. But the separation of powers means something more — something that Montesquieu thought marked the constitutional difference between despotic states and those “moderate” constitutions, whether monarchies or republics, where liberty survived.
The separation of powers is an attempt to institutionalize the rule of law through what Jeremy Waldron helpfully terms “articulated” multipart processes, processes lodged in distinct institutions with distinct personnel and regular, lawful authority. It aims to minimize the frequency with which any government actor is, in the old phrase, judge in their own case. And it particularly aims to provide assurance and security against abusive arrest, imprisonment, and punishment: A person can only be arrested by employees of the executive for having violated a prospective law duly enacted by a separate legislature, and can only be detained pending review of the case by an also-separate judge. While we don’t usually phrase it this way, the writ of habeas corpus is a separation of powers rule: The executive can’t detain indefinitely without charge, and the judge can order the prisoner to be produced to the court and released unless properly charged. The prohibition of lettres de cachet by the French Revolutionis a separation of powers rule, as is the ban on bills of attainder in the American Constitution. And in a meaningful sense, so is the ban on ex post facto legislation. The legislature’s task is not to pick out particular people for punishment, but to announce general rules that people can plan around and obey; ex post facto legislation can’t be planned around and is passed with information available about who will be punished.
Montesquieu took for granted that the holders of the various powers would jealously guard their respective prerogatives because they rested on distinct bases of social power: the people, the monarch, the nobility. The hope of the American founders was that the system could be democratized by simply relying on the ambition of office itself. Members of Congress would protect their institutional rights against the president, not because he was a monarch and they represented the people, but simply because they would wish to preserve the authority of their own offices.
Challenges to the separation of powers in practice
Now, this vision encountered a serious obstacle within a generation of the American founding: the advent of political parties. Contrary to the founders’ original expectations, it turns out that parties are the key institution allowing accountability in a modern democracy. And that scrambles the logic of the separation of powers. When the majority of the legislature is from the president’s party, the ambition of office may not be enough motivation to check his overreach. When the branches are divided, the ambition of office may be irrelevant to a dynamic of mere partisan gridlock. After the advent of parties, other democratizing countries generally chose a different relationship between the legislature and the executive: that of ministerial responsibility to parliament, which has the disadvantage of too much partisan alignment between the executive and the legislature but real advantages in the prevention of executive overreach. (See William Selinger’s Parliamentarism for the divergence between the American and the European parliamentary model. Benjamin Constant, whom I previously discussed in this space, was an early and important champion of the model of ministerial responsibility to parliament.)
In the United States, long periods of one-party dominance perhaps kept the system functional for longer than one might have expected. It’s been rare in American history for both branches of Congress and the presidency to be genuinely up for grabs and regularly changing partisan hands. Before the last two decades, it was perhaps never the case with parties that were so ideologically consolidated that the partisan interests of the president clearly aligned with those of his co-partisans in Congress. As legal scholars Daryl Levinson and Richard Pildes put it, “The practical distinction between party-divided and party-unified government thus rivals, and often dominates, the constitutional distinction between the branches in predicting and explaining interbranch political dynamics. Recognizing that these dynamics will shift from competitive when government is divided to cooperative when it is unified calls into question basic assumptions of separation of powers law and theory.”
To some degree the American doctrine of the separation of powers was probably frozen into a particular shape too early. We see the effect of this most obviously in the effective loss of the tool of presidential impeachment, and the consequent impossibility of removing a president during his four-year term. The founders seem to have foreseen impeachment as a tool that would be used when needed in the face of maladministration —something like what developed a few decades later in parliamentary systems in which a prime minister could lose the confidence of the chamber and thus lose office. Instead, it has become a tool that has neverbeen successfully used to remove a president (though the threat of it chased one into resignation), one surrounded by norms that tie it much more tightly to formally criminal activity than was the case in the 18th-century British practice referred to by “high crimes and misdemeanors.” It didn’t have to be the case that partisanship would take impeachment off the table; the vice president who would succeed to office would be of the same party as the removed president. But it has been, and it is hard to imagine that changing. Throughout the Trump presidency it has been a commonplace that removal by impeachment was simply impossible no matter what misconduct was found, because Senate Republicans would not allow it. This especially unbalances the separation of powers in light of the longstanding (if, I think, dubious) Department of Justice view that the president may not be indicted while in office. When neither indictment nor impeachment is possible, the president is almost completely above the law, precisely the condition the separation of powers is meant to avoid.
Beyond the rise of parties, the executive branch became not only more powerful but also more complicated than the founders imagined. Separation of powers-like norms and articulated processes developed in many spots to address this added complexity, governing the relationship between the political administration on one hand and, variously, the military; the civil service; the Federal Reserve; and investigative, intelligence, and policing agencies on the other. These not only lack constitutional standing; there is a recurring effort to hold at least some of them unconstitutional because the Constitution vests executive power in the president.
Congress’ oversight and investigative powers, while implicit in its legislative authority and the Senate’s ratification authority and used since the republic’s early days, were not formalized in the Constitution. Partly as a result, Congress has always struggled to make those powers effective when the executive resists. Josh Chafetz’s Congress’ Constitution provides an historical overview of the tools Congress has developed to enforce its oversight and investigative powers, and they are real. But they are also, in important ways, workarounds for the problem that the Constitution itself did not clearly provide what was needed.
These are not the only challenges the American mode of the separation of powers has faced. The longstanding practice of civil forfeiture that profits the police department seizing the goods or moneys is a serious offense against the separation of powers and the rule-of-law spirit that animates it. (One of Montesquieu’s examples illustrating the obvious need for the separation of powers was that the king who stood to gain the forfeited goods from a convicted criminal could not be a judge in the case, since he was also an interested party.) Worse still, much worse, was the Obama administration’s decision that it had the authority to assassinate U.S. citizens without trial if they were suspected of terrorism. The rise of the administrative state famously complicates the separation of powers, moving quasi-legislative authority to the executive branch, and sometimes clearly undermines it when administrative agencies adopt unarticulated processes, developing a rule and enforcing it in the same moment. And the rise in government by executive order has been a problem in presidencies of both parties.
The current moment
In other words, the separation of powers in the American constitutional order has never been as robust as we like to think, and there’s reason to think that it’s been getting worse. And yet the current collapse of constraints on the executive is something more than just a continuation of longstanding trends, and not only because of the current president’s “I alone can fix it” mindset.
Under the present administration, I would distinguish three components of the assault on the separation of powers: abusive detention and punishment, the usurpation of legislative authority, and the impunityof executive branch personnel (and especially the president himself).
Abusive detention and punishment, again, will feature in Part III when I turn to the assault on immigration. With respect to usurpation, think of the abuse of the emergency power to fund the wall; the bad-faith national security justifications invoked to pursue the administration’s trade wars; and the declaration of an emergency to justify arms sales to Saudi Arabia. (This last prompted none other than Ted Cruz to say that the administration should “follow the damn law” rather than circumventing it.) Provisions for emergency waivers, overrides, and exceptions are common in legislation, for reasons Locke identified long ago; the executive needs the capacity to act quickly and in light of unexpected circumstances. But Trump treats these provisions as just providing labels to attach to policymaking without or in open defiance of Congress, in circumstances that are not urgent, not unexpected, or not about security. The disingenuousness is barely disguised; after Trump declared Canadian steel a national security threat, he tweeted that he viewed the tariffs as a useful bargaining chip for pressure on Canadian dairy protectionism.
I would also classify as usurpation the deliberate avoidance of the Senate confirmation power through the abuse of the authority to appoint “acting” Cabinet officers and other officials. That’s an important authority: executive functions need to carry on pending nomination and confirmation. But as with the emergency exceptions to statutes, it’s supposed to convey the ability to act quickly and for a short time until Congress can carry out its own co-governing function. When Trump says “I like ‘acting.’ It gives me more flexibility. Do you understand that? I like ‘acting.'” he’s making clear a preference for excluding even the Republican Senate from its constitutional role in vetting, and for retaining the option to shuffle people in and out of jobs. He’s repeatedly delayed or avoided official confirmation processes with their accompanying hearings and investigations. He has sometimes overestimated the flexibility he has, treating “acting” appointments as purely a matter of his own whim when some of them are governed by the Federal Vacancies Reform Act or by the statutes creating particular agencies. But he continues to try to push the boundaries, using short-term gap-filling procedures as a deliberate long-term strategy.
Emergencies are difficult to define; the unexpected can take unexpected shapes. So it will probably always be the case that legislation with such exceptions will have to be somewhat vague about their boundaries. They operate on the presumption of a good-faith working relationship between Congress and the presidency. The administration’s adoption of “the exception swallows the rule” tactics badly damages that. Maybe a future Congress will react by abolishing the exceptions; or maybe presidential power will be permanently bloated by these maneuvers.
Immunity and impunity seem to be of greatest concern to the administration as it seeks to prevent any investigation or adjudication of possible corruption, financial misconduct, or obstruction of justice on the part of any member of Trump’s administration or family. The administration has defied the plain text of a statute permitting the House Ways and Means Committee to obtain the president’s tax returns. It has mounted an unprecedented campaign of stonewalling all investigative subpoenas by House committees. On the de facto constitutional theories being put forward on the right, it seems that no one has standing to hold the president to the Emoluments Clauses of the Constitution, neither courts nor Congress acting through courts nor Congress acting on its own (since the latter would require investigations that the administration might simply disregard).
And, of course, not only did Trump fire the director of the FBI for investigating a member of his administration too aggressively, then refuse to be interviewed by Robert Mueller during the investigation of Russian interference with the election, then seek to delegitimize both the FBI and the investigation itself throughout. When the subsequent report identified several instances of possible obstruction of justice and referred to Congress’ authority and responsibility to act on them in light of the rule against indictments, Attorney General William Barr took it upon himselfto exonerate Trump, lied about what the report had said, and held up the report’s release while “no collusion, no obstruction, total exoneration” took control of the public narrative.
None of this is to say that Trump is an especially strong president. By traditional political science measures, he has been a weak one; strong presidents are able to work with and through Congress to enact substantial agendas into law, thereby setting new policies in place for the long term. In important ways Trump’s reliance on exceptions, end-runs, and evasions are signs of institutional weakness, an inability to use the presidency to govern. But an administration that is less interested in governing than in punishing, detaining, deporting, and above all getting away with things doesn’t seem to much care. And a structure of the separation of powers that had been gradually hollowed out before 2016 looks closer and closer to collapse.
Jacob T. Levy is Tomlinson Professor of Political Theory and Director of the Yan P. Lin Centre for the Study of Freedom and Global Orders in the Ancient and Modern Worlds at McGill University; author of Rationalism, Pluralism, and Freedom and scholarly articles including, most recently,” Contra Politanism” and “Political Libertarianism;” and a Niskanen Center Senior Fellow.