Declaration of Independence

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Sunday, January 1, 2023

What Does Separation of Powers Mean?

The topic of discussion for this Constitution Monday concerns the powers of the three branches of the federal government. The Founding Fathers created a three-headed government: the executive branch with a strong President, the legislative branch with a two-chamber Congress, and the judicial branch with nine separate judges.

Separation of Powers

The President is the leader of the United States of America, but the Constitution does not give the POTUS power over the legislative or judicial branches. Likewise, Congress does not have power over the executive branch or the judicial branch, and the judicial branch does not have power over the executive branch or the legislative branch. However, this separation of power did not stop the Democrat-led January 6 Select Committee from seeking power. This site describes and explains the separation of powers in the federal government. 

A well-known concept derived from the text and structure of the Constitution is the doctrine of what is commonly called separation of powers. The Framers’ experience with the British monarchy informed their belief that concentrating distinct governmental powers in a single entity would subject the nation’s people to arbitrary and oppressive government action. Thus, in order to preserve individual liberty, the Framers sought to ensure that a separate and independent branch of the Federal Government would exercise each of government’s three basic functions: legislative, executive, and judicial. While the text of the Constitution does not expressly refer to the doctrine of separation of powers, the Nation’s Founding document divides governmental power among three branches by vesting the Legislative Power of the Federal Government in Congress; the Executive Power in the President; and the Judicial Power in the Supreme Court and any lower courts created by Congress.


Although the Framers of the Constitution allocated each of these core functions to a distinct branch of government, the design of the Constitution contemplates some overlap in the branches’ performance of government functions. In particular, the Framers favored an approach that seeks to maintain some independence for each branch while promoting a workable government through the interdependence and sharing of power among the branches. Moreover, to address concerns that one branch would aggrandize its power by attempting to exercise powers assigned to another branch, the Framers incorporated various checks that each branch could exercise against the actions of the other two branches to resist such encroachments. For example, the President has the power to veto legislation passed by Congress, but Congress may overrule such vetoes by a supermajority vote of both houses. And Congress has the power to impeach and remove the President, Vice President, and civil officers of the United States. 


Over the course of our history, the Supreme Court has elaborated on the separation-of-powers doctrine in several cases addressing the three branches of government. At times, the Court has determined that one branch’s actions have infringed upon the core functions of another. For instance, the Court has held that Congress may not encroach upon the President’s power by exercising an effective veto power over the President’s removal of an Executive officer. Furthermore, the President may not, by issuing an executive order, usurp the lawmaking powers of Congress. The Supreme Court has also raised concerns about the judiciary encroaching on the legislative or executive spheres where a litigant asks the courts to recognize an implied cause of action, or to vindicate the rights of the public at large rather than those of a specific individual in a case properly before the court. When ruling on whether one branch has usurped the authority of another in separation-of-powers cases, the Court has sometimes adopted formalist approach to constitutional interpretation, which closely adheres to the structural divisions in the Constitution and, at other times, has embraced a functionalist approach, which examines the core functions of each of the branches and asks whether an overlap in these functions upsets the equilibrium that the Framers sought to maintain. 


Subpoena of Former President Donald Trump

Separation of powers was denied in October when the Select Committee subpoenaed former President Donald Trump and ordered him to testify and to hand over documents. Trump recognized that the committee was overreaching its authority and blocked the subpoena with a lawsuit. The lawsuit called the probe an “illegal, unfounded, and overbroad records request.”

Last Wednesday the January 6 committee dropped its subpoena of former President Donald Trump. According to Diana Glebova at the Daily Signal, Representative Bennie Thompson (D-Mississippi) sent a letter to Trump’s attorney containing the following: 

In light of the imminent end of our investigation, the Select Committee can no longer pursue the specific information covered by the subpoena.

Therefore, through this letter, I hereby formally withdraw the subpoena issued to former President Trump, and notify you that he is no longer obligated to comply or produce records in response to said subpoena. 

Trump’s Response

Trump responded as only Trump does and said via Truth Social: “They knew I did nothing wrong.” He wrote:

Was just advised that the Unselect Committee of political Thugs has withdrawn the Subpoena of me concerning the January 6th Protest of the CROOKED 2020 Presidential Election. They probably did so because they knew I did nothing wrong, or they were about to lose in Court. Perhaps the FBI’s involvement in RIGGING the Election played into their decision. In any event, the Subpoena is DEAD!

Glebova wrote that Trump claimed that the “committee omitted evidence, made false statements, and ‘did not produce a single shred of evidence’ that he ‘intended’ for violence to occur at the Capitol.”

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