The Separation of Powers Needs Major Revision
Charles M. Hardin
The subject is the separation between the legislative and executive branches of government. Article I of the Constitution creates, empowers, and limits the Congress; it also imposes reciprocal limitations on the states. Article II, modified by the Twelfth and Twenty-second amendments, creates, empowers, and provides for the election of the president (and vice president). Article I empowers the House of Representatives to impeach and the Senate to try the president. The Twenty-fifth Amendment attempts to provide for the replacement of a president who is "unable to discharge the powers and duties of his office."
The practical effects have been that the president and the Congress have somewhat different constituencies, as the "competitive struggle for the people's votes" shows in elections. Moreover, neither the president nor the Congress exercises significant influence on the nomination of the other. The last example of strong congressional leverage in nominating a president, an aberration, was exercised by certain senators in the choice of Warren G. Harding in the deadlocked Republican convention of 1920. In 1938 even President Franklin D. Roosevelt proved unable to influence key nominations to the House and the Senate.
Recently the separation has been attacked. Lloyd N. Cutler, in his essay in this volume, wrote: "The separation of powers between the executive and the legislative branches, whatever its merits in 1793, has become a structure that almost guarantees stalemate today." C. Douglas Dillon questioned "whether we can continue to afford the luxury of the separation of powers . . . between the executive and the legislative branches." J. William Fulbright urged "serious consideration to a merger of power between the executive and the legislature . . . under what we normally call a parliamentary system." 1