John Whitehead's Commentary

"We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake (it was the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate branches is essential to the preservation of liberty)."--Supreme Court Justice Sandra Day O'Connor, Hamdi v. Rumsfeld (2005)

The genius of the American system of government is that its powers and authority are deliberately divided. Commonly referred to as the separation of powers, this means that the President, the courts and Congress each individually serve as one-third of the American governing body.

There have been several instances throughout American history in which the separation of powers has been misaligned. Most of these involve a national crisis such as the Great Depression and usually a war--the Civil War, the Vietnam War or the Cold War. Unfortunately, America is now confronted with a similar problem. In fact, many argue that we presently face the most significant challenge to preserving the Constitution's separation of powers than at any other time in history--a doctrine that has protected America's freedoms for more than two centuries

The importance of the separation of powers has been brought to light by several modern-day American realities--contemporary global warfare, terrorism, advanced surveillance technology and the emergence of the imperial presidency. Moreover, there is a growing indifference among Americans to fundamental liberties, as well as an astonishing ignorance of the basic structure of American government. Indeed, a 1997 poll by the National Constitution Center found that approximately one-third of Americans do not even know the number of branches of the federal government. And many cannot accurately name all three branches. And according to the Harris Poll, commissioned by the American Bar Association, fewer than half of Americans can correctly identify the meaning of separation of powers; more than one in five identified the three branches of government as Republican, Democrat and Independent; and nearly 30% said they believe the Judicial Branch advises the President and Congress about the legality of an action before they take it.

With the presidency of George W. Bush and the continuing war on terrorism, the separation of powers has become increasingly blurred. For example, while signing a defense appropriations bill, Bush recently issued a statement in which he made it clear that he could ignore laws passed by Congress in exercising his authority as commander-in-chief, particularly with regard to the McCain Amendment. This law prohibits U.S. personnel from subjecting detainees to cruel, inhuman or degrading treatment.

Bush has also ignored the congressionally enacted FISA law, which requires that the President obtain a warrant before conducting electronic surveillance. As we have now learned, however, the President authorized the National Security Agency to secretly monitor domestic calls, Internet e-mails, etc., and in the process conduct warrantless searches on Americans.

The Bush Administration has also argued that the federal courts have a limited role--or no role at all--in overseeing the Administration's actions in certain areas such as the detention and treatment of so-called enemy combatants. When the courts have refused to accept that argument, the Administration has sought legislative action stripping the courts of their jurisdiction in these areas.

Despite these unfortunate realities, however, the doctrine of the separation of powers is a fundamental rule of law deeply embedded in American culture and governmental policies. The Founding Fathers were deeply devoted to securing a government committed to an equal distribution of power. Fresh in their minds was the tyrannical rule of the British king. They understood well that if power weren't shared and checked, a dictator would control the destiny of rights and liberties. Indeed, it is for this very reason that they created the three coequal branches of government.

Although the U.S. Constitution does not expressly mention the phrase "separation of powers," the document clearly reveals its presence. Article I establishes the legislative branch of our government, which is housed in the U.S. Congress. Congress is to act as the voice of the citizens, and primary among its duties is to make the laws. Article II, on the other hand, provides that the President shall act as the leader of the executive branch of government, which has the responsibility to execute the laws that have been established by Congress. And finally, Article III establishes the judicial branch of government (the courts), which is responsible for making sure that no law passed by Congress or act taken by the executive branch violates the Constitution or laws of the United States.

In short, there are three separate but coequal branches of government that are distinct from one another and carry the responsibility to oversee one another. In other words, the American form of government includes a system known as "checks and balances." Perhaps this is one of the most ingenious ideas of the Framers. The power of each branch to check the others was designed to prevent the majority from ruling the minority with an iron fist. And just as importantly, it prevents the majority from utilizing one branch of government to suppress the rights of all.

This system of checks and balances can be clearly seen in the several relationships among the three branches. For instance, although the President has the power to appoint judges, Congress must approve those appointments. Similarly, even though Congress passes the laws, the President has the power to veto those laws, although such vetoes can later be overridden by Congress. The courts are not immune from this system either. The courts check both Congress and the President by striking down any law or action taken by them that is contrary to the U.S. Constitution. But if the President or Congress disagrees with the court's decision, they can in turn attempt to amend the Constitution.

To illustrate the point, imagine a weighing scale. The clear goal of the Constitution is to have a perfectly balanced scale. But when one side acquires more weight or power, the other side decreases in weight or power, resulting in an unbalanced scale--or in our case an unbalanced government.

This means that the American system of government will not survive unless those individuals we elect understand their proper role and the Constitution. However, Congress and the courts, particularly since 9/11, have repeatedly surrendered their responsibilities as separate and independent branches of government. Both must reclaim their roles and their constitutional duty to act as the full equals of the executive branch. Above all, they must stop deferring to the President every time he invokes the recurring mantra "war on terror."

Americans fought the War of Independence to escape being governed or ruled by a single individual who was immune from advice or control. To them, this was tyranny. Let us not forget the lessons of the past or our freedoms will be lost.

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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