The Fragility of Separation of Powers

At a 2011 hearing before the US Senate, Justice Antonin Scalia posed the question of “why is America such a free country.” What fundamental provision has enabled it to evade tyranny over two centuries. The immediate impulse is to suggest its steadfast commitment to freedom of speech. After all, freedom of speech is enshrined in the very first amendment of the Bill of Rights, and Americans are quick to preach the gospel of their freedoms to us foreigners.

However, as Justice Scalia noted at the time, this is a tempting fallacy. It is undoubtedly true that the provisions of the Bill of Rights advance the cause of freedom. It is also equally true that many dictatorships guarantee the same rights. Consider the 1936 Constitution of the USSR, instituted by Stalin at the apex of his total control of the Soviet state. As Stalin was in the middle of consolidating power during the Great Terror, Article 125 of his new Constitution guaranteed freedom of not only speech, the press, and assembly, but also of street processions and demonstrations. Not to be outdone in magnanimity, Stalin further offered to ensure these rights by “placing at the disposal of the working people … printing presses … and material requisites for the exercise of these rights.” Of course, it did not mean anything. Close to a million died during the executions of the Great Terror. Without an effective enforcement mechanism, words on paper were no guarantee of any rights.

In The Federalist 48, Madison wrote that “a mere demarcation on parchment of … is not a sufficient guard against … a tyrannical concentration of all the powers of government in the same hands.” Here Madison touched at the heart of the matter. What separated the Soviet Union from the United States was not a Bill of Rights, but the degree of decentralisation of government power. In the US, separate branches of government have the capacity to regulate each others’ excesses via a complex system. This makes it difficult to centralise power in any one institution. By contrast, the Soviet system had such a separation only on paper. Authority was de facto centralised in a small body - the politburo. In extreme cases, such as Stalin’s rule, authority was centralised in one person. Without any mechanism to guard against the excesses of what Madison called “the encroaching spirit of power”, it is little surprise that Stalin did not display the magnanimity his constitution guaranteed.

A much better answer to Justice Scalia’s question, therefore, is the separation of powers. Separation of powers has steadfastly prevented the centralisation of power and guarded against the excesses of any one faction. The US has robustly safeguarded this separation through its existence. This should not be taken for granted, considering that there are only two political parties in the US whose influence is so ubiquitous that at times they act as de facto institutions of government in their own right. John Adams noted in 1780 that “There is nothing which I dread so much as a division of the republic into two great parties,” going on to label it as “the greatest political evil under our Constitution.”

This danger has been averted historically due to factionalism in each party. For example, the Republican Party was split into factions that supported Truman’s foreign policy initiatives like the Marshall Plan and those that advocated firm isolationism following World War II. In the Democratic Party, factions formed on either side of the Civil Rights movement in the 1960s. Another example is the contemporary Democratic Moderate vs Progressive split. Historically, there has been an abundance of fault lines to catalyse internal factionalism. This has suppressed the danger of power centralisation. The parties have had enough internal incoherence to mitigate the threat of any particular faction centralising power, even if one party held all branches of government simultaneously. This stands in contrast to the Bolshevik Party, which removed all safeguards against concentration of power by instituting an explicit ban on factions at the 6th Party Congress in 1921.

This implicit protection conferred by internal factions is also now under threat. While the contemporary Democratic Party is partitioned by various ideological fissures, the Republican Party has undergone an alarming homogenisation since 2016. Prior to 2016 there were various factions. Examples include the libertarian/populist Tea Party and the more mainstream establishment including figures such as John McCain and Mitt Romney. Ideological debates included examples such as the extent to which laissez-faire free trade was positive, with the establishment being in support and the populists against. Since Trump’s victory however, virtually all contending viewpoints seem to have been suppressed. The party has fallen in line remarkably efficiently with his populist vision no matter how incoherent it is. It is amusing and alarming to see prominent voices such as Sens. Ted Cruz & Lindsey Graham, who had bitterly criticized Trump and had been insulted repeatedly by him during the election, becoming ardent acolytes of Trump. The few who have tried to assert different viewpoints, such as Sens. Jeff Flake & Mitt Romney or Ohio Gov. John Kasich, have been virtually exiled from the GOP. This has resulted in a Trump monopoly of ideas in the Republican Party, achieved organically without the need of an explicit Bolshevik-esque ban on factions. This is an incredibly dangerous situation to be in. Homogenisation has led to power being centralised in not only one faction, but in the person of Donald Trump the outsider billionaire.

The US is not the USSR, and that will not happen any time soon. However, the alarming homogenisation of the GOP does not augur well. The symptoms have been apparent throughout the various crises of 2020. By many metrics, the US handling of the coronavirus pandemic has been bad. As of this writing 204,756 Americans have died. If the pandemic is compared to US wars, it would have the third highest death toll behind WWII and the Civil War. Despite this, a poll found that 57% of Republican voters believed the death toll from COVID-19 was ‘acceptable’, echoing the sentiments of the President as he tried to defend his response to the virus. This in contrast to 31% of all registered voters believing that it was acceptable. Trump has also routinely refused to explicitly support a peaceful transition of power should he lose this year’s election, which is unprecedented for a US president. Despite this, his party has not rebuked him for violating a fundamental pillar of American democracy. Here we see a remarkably robust consolidation around Trump, a potent example of the effect of the removal of factions in the GOP and the following centralisation of power.

The consequences extend beyond mere influence. Real problems arise when the structure of the government is under threat. Currently, the GOP controls the Presidency and the Senate. Due to the centralisation of power in the GOP, the Senate’s ability to check the President has been undermined. Nowhere has this manifested more starkly than following the death of Justice Ruth Bader Ginsburg barely two months from the election. In 2016, the GOP, led by its stern taskmaster Mitch McConnell, was resolute in its refusal to grant Obama’s nominee even a hearing months before the election, arguing that the winner of the election ought to appoint the next justice. In 2020 however, the Senate GOP is attempting to expedite the confirmation of Trump’s nominee less than two months before the election in a brazen volte-face of its own precedent. Every Supreme Court nomination is extremely consequential. To rush a nomination through in record time at the behest of the President while 60% of the country believes the winner of the election should appoint the next justice is a concrete and worrying demonstration of the effect the centralisation of the GOP has had. Should this trend continue, it is not difficult to imagine Senators continuing to surrender their prerogatives to an executive they are beholden to.

Separation of powers has been a vital ingredient in the American experiment and has somehow survived robustly through the dominance of two political parties. While the Democratic Party has remained ideologically diverse, the Republican Party has undergone an alarming homogenisation. The result has been centralised power in the figure of Trump, who has de facto authority to dictate the GOP platform. The effects are already becoming apparent throughout the crises of 2020 and threaten to plunge the US into a further constitutional crisis as the structure of government becomes unworkable.