Biden’s Billions: The Slow Erosion of the Separation of Powers and the Threat to American Democracy

Although the United States was the first modern nation to transition from a monarchic to a democratic government, hardly any countries have adopted the most distinctive features of our republican system. Few 18th-century advocates for republicanism rushed to copy our electoral college or our federalist system while designing their own republics. However, this has not been the case for one key American founding principle: the separation of powers, which has been widely embraced. Our founding fathers were well-versed in history and enlightenment philosophy and knew the dangers of vesting too much power in any single individual or governmental body. After 7 years of fighting in a bloody war against the crown, the American statesmen tasked with crafting the government of, by, and for the people knew that too much centrally vested power would return the nascent country to an antebellum order of anti-democratic, top-down control. In The Federalist №51, James Madison writes of the separation of powers that “it may be a reflection on human nature, that such devices should be necessary to control the abuses of government.” Even in the 18th century, the founding fathers understood the principle that Sir John Acton would famously elucidate in the phrase: “power tends to corrupt, and absolute power corrupts absolutely.” In the 20th century, however, the separation of powers came under a siege that has yet to subside. A slow erosion of this principle in favor of short-term expediency has left the federal government unable to meet the challenges of the 21st century.

President Joe Biden on August 24th, 2022

War Powers

In 1964, following an attack on U.S. naval forces, Congress passed the Gulf of Tonkin Resolution, which vested in then President Lyndon B. Johnson nearly limitless power to militarily aid “any member or protocol state” of the Southeast Asia Treaty Organization (SEATO). In writing this blank check to the executive branch, Congress effectively removed its exclusive exercise of the rights granted to it by Article I, Section 8 of the Constitution (to declare war, raise and support armies, make rules for the government, regulation of the land and naval forces, etc.). The war in Vietnam would arguably end in an American defeat, and with the deaths of more than 1.3 million people. A defeated America, licking its wounds from the Vietnam conflict and jaded with overseas conflict, demanded structural change. In 1973, Congress headed their calls and passed the War Powers Act, overriding President Nixon’s veto. The intent of the act was to clarify the role of Congress and the role of the president in waging war. This War Powers Act was balanced on a knife’s edge from the beginning. It aimed to allow the president to react swiftly to threats that required more immediate action than Congress could provide, while also maintaining Congress’ constitutional right to declare and oversee America’s wars. Though the effort to preserve the separation of powers was noble, the War Powers Act arguably failed to adequately check the executive branch. In 1983, President Ronald Reagan invaded Grenada without congressional approval. Although it sparked an intense backlash among Reagan’s political opponents, the invasion resulted in only minor disputes over military funding. In late 1990, then President George H.W. Bush stationed more than 500,000 U.S. troops in Saudi Arabia in response to Saddam Hussein’s illegal invasion of Kuwait, without Congressional approval. In 1991, Congress further caved to the demands of President Bush to invade Iraq. In this case, Congress passed a blank check, similar to the Gulf of Tonkin Resolution though not as sweeping, allowing President Bush to wage war in Iraq with limited congressional oversight. In the mid-1990s, President Bill Clinton arguably violated the spirit of the War Powers Act by sending U.S. troops into Bosnia. Finally, in 2001 and 2003, Congress passed several bills allowing for the use of military force in Afghanistan and Iraq, authorized by then President George W. Bush. This lack of oversight by Congress has enmeshed America in several overseas conflicts, resulting in trillions of dollars wasted and the deaths of thousands, while we have arguably failed to achieve many of our foreign policy objectives.

Overreach by the Supreme Court

Article III of the U.S. Constitution created the Supreme Court and vested in it “the judicial power of the United States.” The landmark 1803 Supreme Court case, Marbury v. Madison, gave the court the right of judicial review. These powers were granted to the court so that, when the president acted in his/her capacity as the chief executive or when Congress passed a law, the court could review that action to determine its constitutionality. This role of the court, necessary for the preservation of the separation of powers, has come under attack in the name of political expediency. Today, the court acts less as a check on the executive and legislative branches of government, and more as a de facto legislature. Gay marriage, abortion rights, and the outcome of presidential elections have all had their final say, not in front of an elected legislature, but rather by 9 unelected justices appointed by the president. It is important to note that the opinions here expressed are only relevant insofar as they pertain to the function of government. No argument is being made one way or the other about the viability of gay marriage, the morality of abortion or bans thereof, or regarding the outcome of the election of 2000. When Roe v. Wade was decided in 1973 by the Warren court, it was immediately controversial among constitutional scholars. The penumbra argument made by the court in Roe seemed to some to create a constitutional right to privacy out of whole cloth, and then to necessarily imply a right to an abortion up to a certain point in the development of the fetus, despite no article or amendment in the constitution directly establishing such rights. The language of the decision established the viability standard; that no state could regulate abortion before the point of viability in the third trimester. Disregarding one’s opinion on abortion, the arguments before the court read more like a legislative fact-finding mission, and the decision itself has little to do with the supreme court’s powers to determine the constitutionality of the laws. This disconnect was the basis for the recent Dobbs v. Jackson decision, in which the court struck down Roe v. Wade, and returned the question of abortion to the states or to the federal legislature, as it always should have been. If one is pro-choice, would it be preferable to have a woman’s right to choose always contingent on the whim of 9 unelected justices, or should it be a question of legislation? If one is pro-life, would it be preferable for the state to commit what is viewed by pro-lifers as state-sanctioned murder because of 9 unelected justices, or would one prefer their elected officials to oversee the legislative process, and create laws that address abortion directly? All of our peers in the west have actual laws regulating abortion, rather than sweeping judicial precedent; we should emulate this. It is important to note that this critique of the Supreme Court only applies insofar as the decisions made therein violate the Constitutional purpose of the court, as outlined in Article III of the Constitution. The court has repeatedly made decisions that positively affect marginalized communities in the United States, such as in Brown v. Board of Education, where the segregationist principle of “separate but equal” established in the 1896 case Plessy v. Ferguson was struck down. The difference between the decision in Brown and the decision in Roe is that Brown struck down segregation based on principles of the Constitution, namely the 14th Amendment’s equal protection clause, while Roe could cite no such explicit Constitutional principle. When the judiciary begins to act as a legislature, a carefully crafted tripartite system, designed to combat man’s proclivity to be corrupted absolutely by absolute power quickly breaks down into a de facto elected monarchy, or perhaps an oligarchy. The president signs executive orders, appoints justices to the supreme court, and wages war with little or no oversight by Congress, which is supposed to be the central branch of our democracy. This paradigm vests far too much power in a single person and creates an opening for a radical leader to radically lurch the policy agenda of the United States with little standing in their way. President Donald Trump showed the rotting system of checks and balances for what it was by repeatedly breaking with tradition and established legal precedent with no consequences.

Biden’s Plan to Bail Out Students

The most recent example of the erosion of the separation of powers is President Joe Biden’s plan to spend $400 billion without permission from Congress, in order to bail out those with student loan debt. Article 1, Section 7 of the U.S. Constitution gives Congress “the power of the purse” or the ability to spend public funds collected through taxation of the citizens. There is a limited amount of money that the executive branch is entitled to spend on various causes, though a plan with a $400 billion price tag, sanctioned entirely under the auspices of the president, grossly violates mos maiorum and established precedent. Spending of that magnitude ought to be handled by the legislature to better reflect the will of the people. All of the aforementioned issues would have been handled better were Congress in charge of their execution, as mandated by the Constitution. Declarations of war, issues with cultural salience like abortion and gay marriage, and large-scale spending are issues about which there ought to be vigorous debate, but ultimately insofar as the law is concerned, these issues should be decided by the body that the people have the most regular control over; Congress. Spending without adequate checks on that spending is a problem in and of itself, however, it does act as a canary in a coal mine for more structural problems in the government which highlight the threat posed to the separation of powers to American democracy. What if, instead of a political moderate like Joe Biden, some radical politician was elected to the presidency? This person, without adequate checks on their power, could stack the Supreme Court with loyalists, issuing de facto legislation by fiat that would affect hundreds of millions. The president could spend billions or even trillions of dollars without the necessary oversight that Congress can provide. Finally, and perhaps scariest of all, the president can declare wars, throwing the full might of the American armed forces into whatever country he/she may desire without the consent of the people. Biden’s proposed plan to bail out student loan debt may be something that seems disconnected from the broader erosion of our institutions, however, that could not be farther from the truth. This level of spending from the executive is unprecedented in our history, and will only contribute to our rising national debt. Our founders understood the value of the separation of powers; we ought to learn this lesson.

Mrs. Powel of Philadelphia asked Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” With no hesitation whatsoever, Franklin responded, “A republic, if you can keep it.”