October 17, 2021


In Federalist 51 Madison offered what is perhaps the best explanation of a system of government based on separation of powers that has ever been written. Acknowledging that if “men were angels” no government would be needed, Madison argued that any government “administered by men over men” must be so constituted so as to control it as well as the governed.

The electoral process provided a primary means of controlling government, but “auxiliary precautions” were also needed. The Constitution would provide these precautions by so constituting the national government in its separate branches as to discourage the abuse of power. A system of checks and balances, Madison believed, would give “to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.” A president, for example, would have both the necessary powers and the self-interest to resist encroachments from the legislature or judiciary. Similarly, Congress and the Supreme Court would combine personal motives and constitutional powers to resist any intrusion by the other branches. “Ambition,” Madison declared, “must be made to counteract ambition.”

Center of Civic Education

Understanding Thomas Jefferson on executive powers

The source of the president’s claim to embody the will of the nation is his mode of election; because the president is the single nationally elected officer, the president can claim, more than members of Congress, to represent the national will.

Because the president must be able to execute that will, it must be surprisingly strong, or energetic. Second, because a constitution can never be adequate for the opportunities and emergencies that will arise, and because the executive is caretaker of the public good, the executive must sometimes act outside the law, or even against it, on behalf of the public good. But the condition for such discretionary action is that the executive “throw himself” on the people for judgment, and, in order to make that judgment as accessible as possible, the executive must avoid broad constructions of the Constitution

Teaching of American History by Jeremy D. Bailey

As it is made clear in the above quotes explaining our forefathers desire to form a government in which the possibility of a single ruler would be diminished, even the main forgers of our Declaration of Independence and our Constitution had difficulty delineating the powers given to the executive in the separation of powers design.   Executive orders are not part of the law of our land, but in the form of “declarations” have been used since George Washington.   Our country is faced in the last two years of Obama’s presidency by a new scheme with the opposing party in control of both chambers of the legislature and an executive that has shown the propensity to “rule” rather than govern.   The president’s ideology, style, and way of executing his job, were given a resounding defeat in the last congressional and governors election.   Even so, instead of confronting his defeat as a reason to change his ways he seems to have decided to “double up”, by threatening a veto on potential bipartisan legislation and using administrative feat to legislate his wishes even as they, opposed to Jefferson’s reasoning, are not supported by the “judgment” of the public.   Obama had in his first two years support from the entire legislative branch, but chose with the exception of the Affordable Health Act, to ignore his campaign promises on immigration, climate, foreign policy, etc., preferring to act through administrative orders using government agencies like the EPA, FDA, and the Department of Justice.   Instead of his promise of not accepting a “blue or red America, just a united one”, he, right from the start, became the most divisive President in our history, separating the citizens by fortune, sexual orientation, place of birth and race.   In the last four years we have been faced by a non functioning government.   Whether the republican controlled house was a “chamber of no”, or the Senate a “blocking agent” for Obama, a place where possible legislation died, or both are to blame, is a discussion to be had by the political pundits.   Now it’s the time to have a clear agenda coming from that branch of government, following the conservative values that the majority of voters want.   Without Harry Reid covering for Obama, he will have to use his “pen and phone”, the pen to veto or legislate, or the phone to act as a mediator to achieve compromises.   It is not a time for partisanship, or decisions made for personal gain, ideological or narcissistic, it is a time to govern.

Fernando J Milanes MD