The Separation of Powers and Foreign Affairs
L. Peter Schultz
The question to be addressed is, Does the separation of powers still work? Although it is refreshing to have the Constitution and one of its most prominent characteristics taken seriously, one must ask what is meant by the question. For in an immediate sense, it seems beyond question that the separation of powers still works. That is, the federal government functions, by and large, according to the design of the Constitution, proposed legislation being dealt with first by Congress, then by the president, and sometimes by the Supreme Court. Moreover, it is also beyond question that each of the three departments has sufficient power to affect public policy and that, in disagreements between departments, the ensuing struggle is closely contested precisely because the separation of powers still works. Despite contentions that the president or the Supreme Court has become "imperialistic," none of the departments can simply override the wishes of the others or work its will in disdain for those other departments. 1 That each department is, in an important sense, independent is evidence of the continued vitality of the separation of governmental powers into three departments.
The question, therefore, is not so much whether the separation of powers still works in this immediate sense as whether, by working, it serves the public or national interest. That is, is a defense of the separation of powers as persuasive today as it was in 1787, when the Constitution was drafted? Or has the separation of powers become obsolete, a political device that despite or because of its venerable age should be consigned to the dustbin of history? Stated more fully, the question is, Does the separation of powers serve the ends of government as they are conceived today as well as it served the ends of government as conceived in 1787? And the answer given by very many commentators today is a decisive no.