Separation of Powers at the Crossroads
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The claim that separation of powers weakens government is equally
unpersuasive. It is abundantly clear from an examination of the Constitution and a review of The Federalist that the national government was to
be a strong government, with the power to fulfill the obligations placed
upon it and the means to carry out those obligations. Separation of powers was designed not to emasculate the powers of government, but to
give some assurance that they would not be exercised in an oppressive
way. Preventing the aggrandizement, usurpation, and abuse of power is
not the same as preventing the exercise of lawful power. There is no pattern of evidence that the separation of powers has prevented the United
States from dealing with foreign aggression or domestic crises in a timely
and efficient manner. Of the many examples that have been offered in defense of separation of powers, however, none is more convincing than
the twentieth-century spectacle of totalist governments misruling more
than half the world. The concentration of ruthless power in the hands of
fanatical and half-mad rulers—often in the name of ‘‘liberation’’ or ‘‘people’s democracy’’—has resulted in a degree of human misery that even
the worst government of the eighteenth century would have regarded
with horror.
Separation of Powers at the Crossroads
The complex task of directing the affairs of a modern industrial state,
with a large and growing population placing increased demands on government, has had a negative effect on separation of powers and the rule
of law. So too has America’s rise to power as the defender of the free
world, which has changed the role of the President and what is expected
of the office, and greatly enlarged his war and diplomatic powers.
Of the many factors which have contributed to the decline of separation of powers, however, the massive delegation of legislative powers
by Congress to executive agencies and independent regulatory commissions has probably done the most to change the relationship among
the branches and the law-making function of government. By delegation
of powers is meant the transfer of the decision-making authority from
one branch of the government to another. Independent regulatory commissions, such as the Federal Trade Commission, the Federal Communi-