Do We Still Have Three Branches Of Government In America? – OpEd

By Emanuel L. Paparella, Ph.D.*

When I was in college in the 60s I took a required course in American Government. It had chapters on Federalism, the Constitution, Checks and Balances, the Three Equal Branches of Government, the demarcation, separation and balancing of power.

As I studied those traditional institutions of the American polity called the United States, so different in many respects from those of other countries and therefore so exemplary to other democracies, I took it for granted that in the future they would remain part of its identity as a nation. Sadly, I am no longer confident that such is and will continue to be the case. Those institutions seem outdated now. What we have around today are “alternate facts.”

What I found intriguing in the formation of this unique form of government, was that the greatest power, taxation, spending, decisions on war, confirmation of members of the President’s Cabinet and justices of the Supreme Court was not located in the White House, the executive branch, but in Congress. Yes, the new nation was a republic, but most importantly, it was also a democracy. The American people, choose who does the governing.

In other words, a parliamentary system wherein legislative and executive powers were joined, had been definitely rejected. Ultimately it is the people, and not the parties, that rule.

All of the above might still have been largely true in the 60s, but one wonders now if it’s still accurate. It is apparent by the fanfare with which a pompous egomaniacal president signs his plethora of executive orders, that the presidency is a centrifuge sucking power from Congress and the sovereign states constituting the confederacy. Those executive orders and regulations have all the semblance of law, but it is only a semblance.

To some extent this state of affairs also exists in the Supreme Court which has held that on most policy questions, statute trumps fiat. The implication seems to be that Congress ought to subordinate its constitutional duties to political concerns.

Congress has steadily abandoned its constitutional responsibilities and its ability to serve as a check on the executive. Consequently, rather than a horizontal structure as intended by the founding fathers, we have ended up with a vertical pyramid with the President sitting on top.

The problem today is that on both sides of the fence Republicans and Democrats in Congress think of themselves not as a separate branch of government, but as messengers of their political parties.

Congress dropped the ball, so to speak, when it attempted to reassert its authority on the declaration of wars, which, as the Constitution prescribes, only Congress can initiate. It tried to mitigate presidential overreach when in 1973 via the War Powers Act they provided that Congress could step in in a presidentially initiated conflict within 60 days of its inception. It is doubtful that any Congress would interrupt a war and abandon troops engaged abroad. In effect Congress abdicated its function of people’s representative by leaving presidents free to initiate conflicts.

Moreover, Congress, who holds the power of the purse, now allows presidents to first submit their proposed federal budgets before even beginning serious discussions about spending decisions.

The judiciary is till theoretically and constitutionally separate from the other two branches, but the fact is that both Republicans and Democrats vies the federal courts, including the Supreme Court, not as an arbiter, but as a branch of the legislature. What seems to be uppermost on those who have to approve nominees is how he/she will rule on controversial political questions. There now in place a litmus test for any potential court nominee. The question is not whether or not the nominee is qualified to function judicially, but whether or not he is a liberal or a conservative. A Supreme Court nominee is viewed as another vote in the Senate.

So, what do we have today of the separation of powers? Basically this: the separation is no longer between the three constitutionally created branches of government but between a branch which consists of the president and his supporters in Congress and on the federal bench, and a branch made up of the opposition party, opposition to the president, those who oppose him in Congress and their co-partisans on the bench. It is beginning to look like a war between fiercely competitive political clubs.

In his Leviathan, Hobbes declares that one of the functions of governments is that of preventing abuses of the weak by the powerful of this world. Machiavelli makes a similar point. What the US founding fathers point out, however, via the Declaration of Independence and the Constitution is that governments too need to be prevented from committing abuses; hence the necessary divisions of authority between the states and central government, and between the branches of the federal government.

The question arises: are we teaching today’s students the same system of government taught in the 60s, the one conceived by the founding fathers? Or, is it a failed system no longer corresponding to the present reality? If that is the case, ought we not be making them aware of that unfortunate fact, at the risk of teaching them an alternate reality with alternate facts?

About the author:
Professor Paparella has earned a Ph.D. in Italian Humanism, with a dissertation on the philosopher of history Giambattista Vico, from Yale University. He is a scholar interested in current relevant philosophical, political and cultural issues; the author of numerous essays and books on the EU cultural identity among which A New Europe in search of its Soul, and Europa: An Idea and a Journey. Presently he teaches philosophy and humanities at Barry University, Miami, Florida. He is a prolific writer and has written hundreds of essays for both traditional academic and on-line magazines among which Metanexus and Ovi. One of his current works in progress is a book dealing with the issue of cultural identity within the phenomenon of “the neo-immigrant” exhibited by an international global economy strong on positivism and utilitarianism and weak on humanism and ideals.

Source:
This article was published by Modern Diplomacy.