On this day in 1788, Federalist Paper No. 47 is published. James Madison (a.k.a. “Publius”) tackles the concept of separation of powers in government. Believe it or not, our Constitution was then being attacked for failing to provide sufficient separation among the legislative, executive, and judicial functions.
How interesting that the founding generation was ready to reject the Constitution because of a fear that it violated “separation of powers.” Yet, today, many modern Americans have no idea that they are supposed to value that very feature of our Constitution!
The Founders would not understand such indifference. Can you imagine what they would say about recent uses of executive orders to bypass Congress?! (Not a partisan statement. Both parties have done it, but it seems to get worse and worse all the time.)
Madison starts by agreeing with the need for separation of powers: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.” If the Constitution, Madison says, were “really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.”
But Madison simply disagrees that this is the case.
He distinguishes between the concept of “PARTIAL AGENCY” in the workings of another branch of government versus possession of the “WHOLE power” of two departments, simultaneously.
An example of partial agency would be: The executive can veto acts of the legislature. This gives the executive “partial agency” in the legislative power, but not the “whole power” of legislating. Similarly, an executive might have the power to appoint a member of the judiciary, or the legislature might have the power to impeach the executive.
By contrast, the President possesses the “whole power” of two departments when he can create the law, then also execute (enforce) the law that he just created. (Hence the gripe with inappropriate executive orders.)
Madison will continue his discussion of separation of powers in the next paper.