Separation of Powers? Or Separation of Parties?

I think Greg Weiner’s friendly amendment to Ben Kleinerman’s argument may be more than an amendment. What Greg rightly notes is that the logic of the separation of powers should be institutional, not partisan. It is not particularly odd that President Biden sees things differently than Senator Biden. He occupies a different office with different obligations and responsibilities. This is the constitutionally induced hypocrisy that Ben speaks of. (Having said that, Greg is entirely right that there should be principled limits on what the executive is willing to push.) But when members of Congress are what Greg calls “situational constitutionalists,” that reveals a breakdown of the separation of powers. Within the separation of powers, we should expect to see members of Congress protect their institutional power as members of Congress. That’s the Madisonian dynamic. Part of what Ben is describing reflects the Madisonian understanding. 

But part of what Ben is describing, Republicans in Congress resisting a Democrat in the executive branch (and vice versa), is not so much separation of powers as what Daryl Levinson and Richard Pildes dubbed the “separation of parties, not powers.” What is important here is that the parties act as a check on one another—providing for checks and balances by way of separate parties not separate powers. Though, even here, we could expect some sort of principled consistency.  

This is an important issue because it speaks to why we separate political power. There is a lot of confusion on the issue. One reason we do so is to diffuse power so that no one institution or political office concentrates power in a way that facilitates an abuse of power. Separating parties can be another way to achieve this aim. But this captures only one part of the Madisonian version. Madison’s constitutional design was, first and foremost, meant to provide the basis of an energetic government capable of meeting the demands placed on it. From the perspective of constitutional design, power is diffused among different branches of government, but the branches of government are also institutionally structured in a manner that facilitates the exercise of a particular kind of governmental power.

In Madisonian terms, the Constitution focused on institutional structure as a way to advance the purposes of the Constitution. The Congress and the president are designed to achieve different purposes—they are structured to see things in different ways, making them more attuned to their institutional responsibilities. And that is why we would expect President Biden to think somewhat differently than Senator Biden. The problem that Greg puts his finger on, and has written eloquently about in his scholarly work, is that Madisonian design works less clearly in Congress. When member of Congress shift their constitutional understandings depending on which political party occupies the White House, we are witnessing a possible failure of the separation of powers. And while, as Ben notes, this may on occasion limit presidential aggression, it can also empower it. 

2 thoughts on “Separation of Powers? Or Separation of Parties?

  1. Levinson and Pildes have received more attention and more praise among legal academics than their article deserves. They, and legal academics more generally, misunderstand the constitutional design, misunderstand the way American political parties were originally invented, and operated, to facilitate that design, and they misunderstand American political development — especially the change from parties as facilitating versus political parties in recent year subverting and indeed hijacking the constitutional institutions.

  2. Jeff, I’ll leave aside whether Levinson and Pildes have gotten more attention than they deserve. I agree that legal academics often get the separation of powers wrong because they have too legalistic an understanding of it. My point was that we should not confuse members of Congress resisting presidential action for clearly partisan reasons as a victory for the Madisonian separation of powers. We know their reasons are clearly partisan when they indulge executive action from a president of their party but insist that the same action is unconstitutional when taken by the president of another party. This is an example, as you put it, of a party subverting or hijacking constitutional institutions.

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