The separation of powers may be the foundation of our constitutional system, but does it still make sense today? James Madison famously argued that checks and balances are an essential bulwark for liberty; by setting branch against branch, the structure of our government minimizes encroachments on fundamental rights and encourages dialogue and deliberation. But as anyone who has tried to get anything done in Washington quickly learns, the separation of powers is also remarkably inefficient.
American scholars, politicians, and citizens have debated these issues for the entire course of the nation’s history. But now Eric Posner and Adrian Vermeule, law professors at the University of Chicago and Harvard, respectively, tell us that such questions are beside the point, because the separation of powers is just an illusion, a hoary relic of the past ill-equipped for today’s challenges. Executive power in the modern era, they maintain, cannot possibly be constrained by the legislative and judicial branches, or even by law itself, so we might as well get over it. And there is nothing to fear from an executive unbound by law, because the real checks on the president are political, not legal, and democracy, they believe, is in good condition in the United States. Liberals’ fears of executive tyranny are not only irrational but positively harmful. The authors’ message echoes the Department of Homeland Security’s early post–September 11 security alerts: the president is legally unfettered, but go about your daily business as usual.
Posner and Vermeule, two of the nation’s leading conservative legal academics, are hardly the first to notice that presidents have become much more powerful in the modern era.1 Like others before them, they attribute this development largely to the growth of the administrative state, with its huge bureaucracies, and to the near-constant state of emergency in which modern American government now seems to work. In practice, the vast and complex matters subject to federal regulation require Congress to cede control to the executive, through broad delegation of authority to administrative agencies. Those agencies, a part of the executive branch, then exercise the powers of all three branches: promulgating rules, investigating violations, and adjudicating disputes. Members of Congress lack the experience and time to micromanage such diverse subjects as energy, finance, commerce, transportation, telecommunications, the environment, and immigration. And the executive vastly outnumbers the other branches; about 98 percent of the federal government’s nearly two million employees work in the executive branch.
Globalization exacerbates these trends, since the president is the nation’s primary voice abroad, and regulation increasingly requires coordination across borders. In emergencies, the executive’s characteristics of speed, flexibility, unified command, and secrecy are especially valued, so Congress tends to delegate broadly, and courts in turn typically defer to executive action.2 …