Unchecked and Unbalanced: How Separation of Powers Gave Us Donald Trump
This is the first edition of a new version of my newsletter under the new name, Do-Over. It is the first column that I’m using to launch a book project tentatively titled, Do-Over: How We Should Have Written Our Constitution If We Knew Then What We Know Now.
Let me get the premise of this column out of the way quickly. Jack Rakove, who won a Pulitzer Prize in 1997 for his book Original Meanings: Politics and Ideas in the Making of the Constitution, is a dean of American historians of the Constitution. Less than a month ago, he published an article in the Washington Monthly with the title, “It’s Not Just a Constitutional Crisis in the Trump Era. It’s a Constitutional Failure.”
Rakove’s premise is that America is in a moment of Constitutional crisis because our country has failed to enforce constitutional provisions that would have prevented Trump’s second term, such as impeaching Trump for his many violations of the Constitution’s emoluments clauses or disqualifying Trump from the ballot because he violated the Fourteenth Amendment, Section 3 by fomenting the January 6th insurrection.
My argument differs from Rakove because my premise is that we are sustaining constitutional damage under Trump, not because we have failed to enforce the Constitution, but because of the Constitution’s inherent flaws. More to the point, I would argue that Trump’s consolidation of autocratic executive power is the result of the intrinsic flaws of America’s separation of powers model for building its government.
My bottom line is that parliamentary government (such as what you find with the UK’s Westminster system) is intrinsically more stable and more likely to preserve democracy than the model of presidential government we have in the United States. But if presidential government is intrinsically more unstable than parliamentary government, why did the Framers of the Constitution adopt it? The reason is that parliamentary government do not have separation of powers, because the executive and legislative branches are elected together at the same time & they can be brought into office and thrown out of office together. If you are designing a new government and you are insisting on separation of powers, you have a presidential government, because you need to put a president in place to have power that is separate from what happens to the legislature.
The Framers adopted a presidential government instead of imitating the structure of the British parliamentary government they came from due to the intellectual influence of the French political philosopher, Baron de Montesquieu, specifically his magnum opus, The Spirit of the Laws. For Montesquieu, separation of powers made perfect sense, because Montesquieu was living in an era of royal absolutism, where there were no checks and balances against an all-powerful monarchy. When the Spirit of the Laws came out in 1748, Montesquieu was living under the rule Louis XV, who ascended to the throne at the age of 5 and remained there for the next 59 years. Before that, France was under the rule of Louis XIV, who ruled 72 years, which at the time was the longest reign for any monarch in the history of the world. Louis XIV is infamously known for the quote, “L’etat c’est moi,” which translates into English as “I am the state.”
Montesquieu is most effectively quoted by the Framers of the Constitution in Federalist Papers, No. 47 by James Madison. Madison cites Montesquieu as saying, “When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with the violence of AN OPPRESSOR.” [Note: the all caps are in the original. If that offends your sense of netiquette, take it up with the Framers. To be honest, it actually makes me like Madison more.]
The reason why this passage from Montesquieu quoted in the Federalist Papers doesn’t fully apply today is that it assumes a nondemocratic, monarchical model of power, where the executive cannot be constrained or removed by democratic majorities. Separation of powers is definitely superior to 18th century royal absolutism, but with several centuries of hindsight behind us, we know now that parliamentary governments are much better at preserving and stabilizing democracy than their presidential counterparts.
The strongest evidence for why presidential democracy and separation of powers doesn’t work is the entire continent of Latin America. In 1990, as the Cold War was coming to a close, Juan Linz, a political scientist and sociologist who was one of the greatest experts on Latin American politics in the 20th century, laid out his case in the extremely prescient article, “The Perils of Presidentialism.”
The basic problem with presidentialism in Latin America is that it has failed in every single country it has been tried. That is not hyperbole on my part. It has failed Every. Single. Time.
To analyze the history of separation of powers in Latin America, I created a spreadsheet for myself where I listed all the countries in Latin America with presidential systems and recorded the year of the enactment of the first constitution with a separation of powers. I quickly realized I had to revise this, because I discovered that several Latin American nations almost immediately experienced civil wars upon enacting the first constitution. So, in order to prevent confirmation bias and make the best steel-man case for presidential systems that I could, I decided to use the first year in which a Latin American country had both a constitution with separation of powers and all civil wars associated with founding the country had finished. (That way, I’m not attributing failure to the constitution when it could have been due to the initial civil war at the country’s founding.)
After recording the first peaceful, non-civil-war year for when a Latin America had a constitution with separation of powers, I then looked for two potential indicators of constitutional failure: an overthrow of democracy or a subsequent civil war. I chose these indicators, because I think it’s reasonable to say that a constitution doesn’t really “work” unless it preserves democracy and keeps a country from devolving into a civil war.
So, I took the first year a Latin American country had a peaceful year under a constitution with separation of powers & then I simply counted how many years it took before the country experienced (1) a new civil war or (2) an overthrow of democracy. The results were dispiriting to say the least. Six Latin American countries experienced civil wars within less than 10 years of enacting their first constitution with separation of powers, including Argentina, Chile, Mexico, Panama, Peru, and Uruguay. Six Latin American countries also experienced the overthrow of their democracy within 10 years of enacting their first constitution with separation of powers: Bolivia, the Dominican Republic, Mexico, Paraguay, Peru, and Venezuela. (Mexico and Peru are listed twice because they experienced both a civil war and the overthrow of their democracy in the first 10 years after enactment of their constitution.)
Overall, my data set was as inclusive of Latin America as I could possibly make it. I included Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, and Venezuela. The average amount of time in my data set it took for a Latin American country to collapse due to either a civil war or the overthrow of democracy was only about 19 years. Even if you use the most lenient standard possible and you don’t declare a constitution to have failed until you have both a civil war and an overthrow of the country’s democracy, the average time until the constitution collapsing is only a little less than 45 years.
According to Juan Linz, the reason Latin American governments have such a difficult time preserving democracy from collapsing is due to the “dual legitimacy” problem. In a presidential system, both the executive and legislative branches can legitimately claim that they derive their authority from “the people,” even if the executive and legislative branches want completely mutually exclusive things. For example, during the Obama Administration, Barack Obama could claim democratic authority derived from “the people” due to winning two presidential elections, but then again, Mitch McConnell could also legitimate his authority the same way, because he was the leader of a legislative body also chosen through democratic processes.
The problem with presidential systems is that there is no standard constitutional mechanism for resolving whether the executive or the legislative is the more correct and legitimate representative of the “people” when the two are hopelessly deadlocked. Under parliamentary systems, the deadlocks don’t happen in the first place, because the executive and legislative branches are elected at the same from the same party or cross-party coalition. If a parliamentary system of government is hopelessly deadlocked, the government can be dissolved immediately through a no confidence vote in parliament & a new democratically elected government can replace it at a new election at any time.
Part of the problem with a presidential system under separation of powers is that it was deliberately designed by the Framers, especially by James Madison, to be inefficient. In software development terms, the inefficiency of the American constitutional system is a feature, not a bug. Under the Madisonian philosophy, inefficiency is good because it prevents concentration of power, which Madison viewed as inimical to liberty.
The problem with the built-in inefficiency of separation of powers is that it not only makes the government less responsive to democratic majorities (aka “the people”), but it also ensures that the government will be more dysfunctional in an externally imposed crisis (e.g., see Trump’s mismanagement of the COVID pandemic). If you are under the threat of war or pandemic or weather-related emergencies due to cataclysmic climate change, you do not have the luxury of inefficiency.
I believe that the Madisonian separation of powers is best described as an ideal rather than a realistic description of how the government works. In democratic societies with a strong democratic culture like the United States, the people do not and never have tolerated inefficiency from their government. Unfortunately, the government was designed by the Framers of the Constitution to retain a minimum level of built-in inefficiency. In the American system, what happens in practice is that the separation of powers never stays separate for long. American political leaders have and always will continue to develop “workarounds” for getting things done that subvert the built-in inefficiency the system, but only by violating the separation of powers in both spirit and practice.
Basically, there are two different paths that an American-style system based on separation of powers can evolve into. The better path is when the legislature takes on a quasi-executive function and the American system of government becomes a quasi-parliamentary system. This occurs in the rarer cases when one political party has a large electoral mandate that leads to it controlling both the legislative and executive branches at the same time. Examples of this type of quasi-parliamentary government include some of our country’s finest movement including the Civil War congresses under Lincoln and the Radical Republicans, the first Hundred Days of FDR’s New Deal, the congress that passed the Great Society after LBJ’s massive defeat of Barry Goldwater, and the first Hundred Days of Ronald Reagan, which was a conservative retrenchment of the New Deal, but which was done completely democratically in alignment with public opinion and within the bounds of the Constitution. (Reagan’s retrenchment of the New Deal is in contrast to DOGE, the Department of Government Efficiency, which is dismantling the post-New Deal administrative state, but in a manner completely out of step with public opinion and in a complete unconstitutional way that overrides the legislature’s constitutionally designated role in managing government spending.)
But if the best possible outcome for a presidential system with American-style separation of powers is to have a quasi-parliamentary government, then why not have parliamentary government? Instead, what we are experiencing now is the worst of the two scenarios for the evolution of the separation of powers. Instead of transforming a presidential system into a fake parliamentary system that’s presidential in name only, we have continually subordinated the legislative branch under the executive branch, until finally the expanded powers of the executive branch have been seized by an amoral autocrat.
In the Cold War, we often referred to the expansion of executive authority as The Imperial Presidency, as made famous by Arthur Schlesinger in a book of that title. We tolerated expansion of executive power, even though it mirrored the monarchical empires of old, because the United States during the Cold War was under constant military threat from the Soviet Union. Because of the constant threat of nuclear Armageddon, Americans pragmatically tolerated de facto violations of the separation of powers, because it was necessary to give the president freedom to act in case of national security emergencies. (The only problem is that either we get fake “emergencies” that are manufactured out of thin air or we enter a time of polycrisis whereby emergencies become the rule rather than the exception.)
In addition, the threat of the Soviet Union placed constraints on American presidents that kept them from becoming autocratic, because Cold War presidents did not have the option of flouting democratic values. At a minimum, Cold War presidents had to pay lip service to democracy, even if they fell short in practice, because we had to make the ideological argument that the American system was superior to the Soviet system because it was small-d democratic and derived its legitimacy from the people. Otherwise, the Soviets might have taken over the world!
After the Cold War, there is no comparable counterbalance or foreign policy threat to the United States to force presidents to be democratic & Donald Trump is unfortunately taking advantage of that. In dismantling the U.S. Agency for International Development, Trump has abandoned a long-time bipartisan American commitment to use government funds to promote democracy in foreign countries. Instead of relying on international alliances such as NATO, Trump is trying to replace those alliances with an international authoritarian alliance with autocrats ranging from Viktor Orban of Hungary to Jair Bolsonaro of Brazil and Benjamin Netanyahu in Israel. When Brazilian and Israeli citizens have mobilized to constrain the authoritarian threat to their government represented by Bolsonaro and Netanyahu, Trump imposed tariffs on Brazil and attacked Israeli prosecutors in order to help the two leaders wriggle out of anti-corruption trials.
Instead of separation of powers leading to an ersatz parliamentary government (the milder, but rarer of the two options), we get expansion of executive power handed over to an autocrat, because our system doesn’t know how to “get things done” otherwise. Instead of the electorate accepting inefficiency as a good thing that preserves freedom, the electorate’s frustration leads to calls for demagogues and strongmen who will “drain the swamp.” Instead of a government who can implement its agenda simply by winning one electoral mandate, we get conflicts over “dual legitimacy” where political parties feel they can only implement their agenda by winning multiple election cycles in a row. But if you force political parties to win an undetermined number of many election cycles just to get something done, that’s not good for democracy, because the essence of democracy is that incumbents sometimes lose & that when they lose, they cede their power peacefully.
The insurrection of January 6th, when power was not ceded peacefully, demonstrates that we have failed to come up with a sane solution for the “dual legitimacy” problem intrinsic to presidential democracies with separation of powers. Instead, the solution of Donald Trump’s GOP is to attack any legitimate claim of the Democratic Party to govern the country through conspiracism (e.g., the QAnon conspiracy about an elite Democratic cabal of pedophiles), disinformation about stolen elections, disenfranchisement, and the disparagement of Democratic constituencies (e.g., people of color, professors, college-educated professionals) whose votes shouldn’t count because they’re not “real” Americans. England’s parliamentary government has lasted over 300 years. If America does not pay attention to the structural flaws of our own presidential democracy, we might not make it much further past 250.