Separation of Powers--Does it Still Work?

By Robert A. Goldwin; Art Kaufman | Go to book overview

Chief Justice William Howard Taft's opinion for the Court in Myers illustrates, it is only after accepting the principle of legislative supremacy as the controlling principle of the Constitution that one must argue, as Brandeis does, that an "uncontrollable power of removal in the Chief Executive 'is a doctrine not to be learned in American government.'" 28 Without the assumption that legislative supremacy is the controlling constitutional principle, one might well argue, as James Madison did when the first tenure-of-office act was passed, that Congress has virtually no power over the tenure of executive officials, even that virtually all executive officers should hold their offices at the pleasure of the president. 29 It is indicative of his distance from Madison that Brandeis adopts a position held by only two members of Congress during the removal debate in the First Congress in arguing that the removal power could be controlled as Congress saw fit, even exercised by Congress itself. 30 Essentially the disagreement between Brandeis, on the one hand, and Madison and Taft, on the other, turns upon the issue of legislative supremacy and whether that principle is central to the constitutional order. Whereas Madison and Taft interpreted the principle of legislative supremacy in the light of the separation of powers, Brandeis interpreted the separation in the light of legislative supremacy. Practically as well as constitutionally, the Madison-Taft interpretation is to be preferred.

There is, then, neither a necessary nor a constitutional connection between the separation of powers and inefficient government. Every time the government acts with "secrecy and dispatch," as it did in the invasion of Grenada, such action proves that the separation of powers still works, proves that the executive is able to act independently of Congress, relying solely on his constitutional authority to legitimate his actions whether or not they prove successful. Such action demonstrates that the departments of government remain equal and coordinate, as they were intended to be by the framers. Such action also proves that the separation of powers, by serving the cause of energetic or positive government, serves the ends of government even as those ends are understood today. Despite the predominant opinion, the separation of powers does indeed work today by allowing the government to defend the cause of liberal democracy in a generally hostile world.


Notes
1.
Arthur M. Schlesinger Jr., The imperial Presidency ( New York: Houghton Mifflin, 1974); Raoul Berger, Government by Judiciary ( Cambridge, Mass.: Harvard University Press, 1977).

-134-

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Separation of Powers--Does it Still Work?
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • The Editors and the Authors vii
  • Preface ix
  • 1 - To Form a Government 1
  • Notes 17
  • 2 - Political Parties and the Separation of Powers 18
  • Notes 36
  • 3 - The Renewal of American Constitutionalism 38
  • Conclusion 60
  • Notes 62
  • 4 - The Separation of Powers and Modern Forms of Democratic Government 65
  • Conclusions 83
  • Notes 85
  • 5 - The Separation of Powers Needs Major Revision 90
  • Conclusion 113
  • 6 - The Separation of Powers and Foreign Affairs 118
  • Notes 134
  • 7 - A 1787 Perspective on Separation of Powers 138
  • 8 - In Defense of Separation of Powers 168
  • Notes 191
  • A Note on the Book 195
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