As we celebrate the Fourth of July in the U.S., we celebrate our ancestors who won independence from British rule. We also celebrate our Constitution and its role as the Supreme Law of the United States of America.
This is therefore a good time to review what the forward-thinking framers of our Constitution said about the separation of powers between the three branches of government.
In Federalist Papers 51, James Madison argued that a strong separation of powers was “essential to the preservation of liberty” and that each branch must rigorously “resist encroachments of the others” for a republican system of government to work. The system of checks and balances that the Founders built into our Constitution was designed to prevent the concentration of power in a single person or branch of government, which they saw as the root of all tyranny.
The system also ensures that the government will remain accountable to the people.
Article I addresses the legislative powers vested in Congress, which was divided into a Senate and a House of Representatives. Implicit in the duties of the Congress is the power to investigate the other branches of government, who are likewise obligated to cooperate with its investigations. The Supreme Court has repeatedly affirmed these powers, so there is no question that Congress has the right to investigate the actions of a President or to compel witnesses to testify about him.
The Constitution also gives the House of Representatives the exclusive right to interpret what qualifies as impeachable offenses. The Senate, for its part, has the sole power to try officials impeached by the House. A person convicted by the Senate in an impeachment trial is immediately removed from office and may be barred from holding any public office in the future. The official also remains liable to trial and punishment in courts for civil and criminal charges.
Article II vests the executive power of the government in the President. Section 3 of this Article contains the Take Care Clause, which states that the President must “take care that laws are faithfully executed.” As interpreted by the Supreme Court, this clause constrains the actions of the president in at least three ways: (a) he must obey and enforce all laws passed by Congress, even those with which he disagrees; (b) he cannot hinder or prevent any other official, including those employed by the Executive Branch, from performing any lawful duty imposed upon them by Congress; and (c) he cannot take any action that is not authorized by the Constitution or by a lawful statute.
In short, the president cannot just do (or not do) as he likes; he cannot issue decrees, ignore laws, or reject oversight from the other branches of government and still be in compliance with the Constitution. The Founders set things up this way so that the president would not become like the British kings whose authority they had recently fought to overthrow.
This is also why they assigned to Congress the right to police the actions of the president and to remove him from office if necessary. If Congress believes the president is violating the Constitution, it has the right and the responsibility to investigate and hold him accountable.
No president is above the law.
Article III describes the functions of the Supreme Court, which include trying cases involving violations of federal law and deciding cases appealed from other courts. The Article gives the Court supreme judicial authority within the United States. Since 1803 (Marbury v. Madison), this clause has been interpreted as giving the Court the power to declare any law or executive action approved by the other two branches to be unconstitutional and thus null and void.
Our current president could use a good primer on this system of Constitutional checks and balances, since he frequently speaks and acts as if the power of the presidency is unlimited.
Connecticut Congressman Jim Himes summarizes the situation well:
“From the very beginning of his candidacy for the presidency, Trump has railed against our institutions, mocked constitutional principles, and yearned for the unchained powers of a tyrant. Since the American people stood up to his abuses of power by electing a Democratic House majority six months ago, Trump has abused his powers of the presidency to evade oversight and escape accountability by refusing to answer congressional subpoenas, whether for documents from his attempt to subvert the census for partisan gain or for administration officials who could shed light on his potential abuses of power, along with unconstitutionally shifting funds to build a useless monument to himself at the Mexican border.”
Jennifer Rubin of the Washington Post has noted the similarities between President Trump’s actions and those of Richard Nixon.
“Richard Nixon faced impeachment not for any crime, but under the first article of impeachment, because [quoting from the impeachment indictment], ‘in violation of his constitutional oath faithfully to execute the office of President of the United States, and to the best of his ability, preserve, protect and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, he has prevented, obstructed and impeded the administration of justice.’”
In short, the House of Representatives concluded that impeachment and removal would be justified if Nixon used the instruments of power not for the country’s benefit, but to save his own political skin.
According to the indictment, “Richard M. Nixon, using the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede and obstruct the investigation of the Watergate break-in,” thus violating the Constitutional separation of powers.
Rubin goes on to say, “The president is not acting in the public interest when he uses his powers as a shield against inquiry. Trump was seeking a major deal at the time he was running for president. A business associate of Trump promised in 2015 to engineer a real estate deal, with the aid of Putin, that he would help Trump win the presidency. The business associate, Felix Sater, wrote a series of emails to Trump’s lawyer, Michael Cohen, in which he boasted about his ties to Putin, and said he would help Trump win the presidency, saying, ‘Our boy can become president of the USA and we can engineer it.’”
All of this points to gross conflicts of interest and abuse of power by President Trump. Americans who love and revere the Constitution must demand that the Constitutional separation of powers as laid out in the first three Articles be enforced and restored.
It is both our right and our duty as citizens of the United States of America to live in a country where the Constitution is followed, and it is the right and duty of Congress and the Supreme Court to rein in the President when he violates that document.
(Martha Tillinger lives in Allegany.)