A return to the separation of powers

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In recent years, the Supreme Court has gradually abandoned an idea – the separation of powers – that the Framers thought was vital to the preservation of liberty. Instead, the court seems to have been captured by a different – and, I would argue, contrary – idea: a strong presidential system supported by a concept known as the “unitary executive,” which advocates that the president has total authority over the executive branch.

This was first made clear in a 2020 case called Seila Law v. Consumer Financial Protection Bureau, where the Supreme Court created a kind of “just-so story” about why the presidency alone is able to operate without the limitations and constraints that cover the other members of the tripartite government created by the Constitution. Specifically, the question presented by Seila Law was whether a regulatory agency headed by a single administrator appointed for a term of years was constitutional. The court found that this was an unconstitutional violation of the separation of powers unless the president could remove the agency head at will.

In reaching this result, the court posited that multi-headed bodies were favored in the government structure, and attributed this to the Framers’ wisdom:

The Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty … Their solution to governmental power and its perils was simple: divide it.

In particular, according to the court:

The Framers viewed the legislative power as a special threat to individual liberty, so they divided that power to ensure that “differences of opinion” and the “jarring of parties” would “promote deliberation and circumspection” and “check excesses in the majority.”

But the court then went on to describe the executive branch as unique among the three branches:

By contrast, the Framers thought it necessary to secure the authority of the Executive so that he could carry out his unique responsibilities.

According to the court:

The Framers deemed an energetic executive essential to “protection of the community against foreign attacks,” “the steady administration of the laws,” “the protection of property,” and “the security of liberty.” Accordingly, they chose not to bog the Executive down with the “habitual feebleness and dilatoriness” that comes with a “diversity of views and opinions.” Instead, they gave the Executive the “[d]ecision, activity, secrecy, and dispatch” that “characterize the proceedings of one man.”

At this point in Seila Law, the court – perhaps realizing that what it had described was a president without any significant controls or restraints – went on to outline why that would not be the result:

[U]nique in our constitutional structure—the Framers made the President the most democratic and politically accountable official in Government. Only the President (along with the Vice President) is elected by the entire Nation. And the President’s political accountability is enhanced by the solitary nature of the Executive Branch, which provides “a single object for the jealousy and watchfulness of the people.”

In other words, in the majority’s view, the Constitutional Convention created a president with sweeping powers over the executive branch but ultimately subjected him to control by the people.

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With all respect, the court got its history entirely wrong. The Supreme Court’s Seila Law description isn’t even close to what happened at the 1787 Constitutional Convention. There is no sense in which the presidency – finally created as a single person after months of debate near the very end of the Convention – was considered by anyone at the Convention as “directly accountable to the people.” In fact, the idea that the president would be responsible to voters is exactly what the Convention delegates wanted to avoid. They did not want the president to be able to claim he was responsible to the people. That, to them, was the foundation for dictatorial behavior.

To prevent just such a development, the Convention created an early form of the Electoral College to cut the connection between the popular vote and the election of the president, foreclosing an opportunity for the president to claim the very type of power that the Seila Law court contemplates – as an “elected monarch” or a dictator – if he were to be directly elected by a popular vote. After all, the Constitutional Convention occurred only 11 years after the colonies freed themselves from King George III, and creating another powerful ruler was out of the question.

The Electoral College remains in effect, of course, and since 1824 there have been five cases in which the Electoral College winner lost the popular vote, and 15 cases (including as recently as 2016) where the person formally elected president by the Electoral College had only a plurality – not a majority – of the national popular vote. So the Convention was successful in beating back the idea of a popularly elected president with extensive uncontrolled popular power, at least until the current era. 

All of this is to say that the Supreme Court in Seila Law was wrong in its description of what happened at the Constitutional Convention. The delegates there did not intend to give the president any special sweeping powers, such as the ability to remove the members of bipartisan independent regulatory agencies, established by Congress, who were appointed for terms of years, except in cases of maladministration.

Nevertheless, as noted above – using this flawed historical understanding of the president’s power in Seila Law as a precedent – the Trump administration has begun removing officials from these agencies as well.

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So what is the true role of the president in our constitutional system? Does the president have any inherent power to remove the officers of agencies who serve for terms specified by Congress?

Even more important, although the president clearly has the authority under Article II to appoint heads of agencies created by Congress without specified terms, does he or should he have the power to control their policies? And finally, where in a government wholly dominated by a single figure, is the separation of powers, lauded by the Framers as the only way to preserve the liberties of the people?

Based on the history described above, as well as the text of the Constitution itself, there is strong evidence that although the delegates at the Constitutional Convention considered the president as an essential office, it was only for the purpose of administering – not controlling – the government they were in the process of creating. That’s why the powers of the president in Article II are limited to commander-in-chief of the armed forces, making foreign treaties with the advice and consent of the Senate, appointing other officials, and taking “care that the laws be faithfully executed.” There was nothing at all suggesting that the president should control executive personnel or make policy in the way he does today. Indeed, according to Section 2 of Article II, the president “may require the opinion, in writing, of the principal officer of each of the executive departments” – an authority that would be unnecessary if the Constitutional Convention had thought he was intended to control all of the executive’s departments.

Nor does the “vesting clause” in Article II of the Constitution, which states that “[t]he executive power shall be vested in a President of the United States” give him any such power. This was solely to allow the president to carry legislation into effect and was tempered by his limited powers.

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Nevertheless,  a number of factors – decisions by the Supreme Court (such as Seila Law), the Civil War, the Great Depression, a decline in the capacities of Congress, the wars of the 20th and 21st centuries, and the rise of a theory like the “unitary executive” – have all endowed the presidency with powers that no one who designed the Constitution, or followed the debates that ensued before it was ratified, could ever have imagined.

This brings us back to the separation of powers, which underlines many of the points made above and which is especially threatened by the concept of the “unitary executive.” The Constitution was based on a concept known as the separation of powers for a reason: to assure that the liberties of the people would not be threatened by their own government, including that of the executive. The revolutionary concept here was that the three governmental powers created by the Constitution – Congress, the president, and the judiciary – were to be as far as possible in tension with one another, each with specialized powers enabling them to limit the powers of the others, so that the liberties of the people were not jeopardized.

This assumed that each branch of government – Congress, the president, and the judiciary – would jealously guard its own powers against dangerous growth in the powers of the others. The governmental sectors were not intended to be hostile to one another, of course, but each had a speciaI governmental function that made it independent of the others and thus able to protect the liberties of the people in the area it covered.

That is the constitutional structure that fully embodies the separation of powers and the only one that the delegates to the Constitutional Convention approved.