What does the attempted impeachment of Homeland Security Secretary Alejandro Mayorkas say to us about the health of one of the core principles of US governance – the separation of powers ?
Separation of powers is a founding concept of US civics. The idea goes back to 18th century French political philosopher Montesquieu’s book ‘The Spirit of the Law’. It was adopted by the Founding Fathers specifically to prevent a return to the monarchical form of rule that had prompted the revolution. Through clear constitutional seperation of the executive, the judiciary and the legislature, checks and balances would exist to prevent future arbitrary authority.
In the US system, the legislature exists to provide the legal framework for government and to hold the executive to account. The judiciary exist to test and review legislative and executive action against the framework proivided by the Constitution and specific laws. The executive, under the President, is responsible for running the Federal government on a day to day basis and exercising Federal responsibilities under the Constitution.
The legal and theoretical separation of powers has always had its limitations. There has long been a struggle, for example, over the extent of executive freedom of action within the broad context established by legislation and the Constitution. This has generally been a healthy debate for the understanding of the importance of separation of powers.
Effective separation of pwers is ultimately dependent on a civic mindset and values to function fully as an enabler of better governance. Where these fail, the practical exercise of separation becomes difficult.
The political appontment of the judiciary is one area of structural fracture in the US separation of power. This process has come to be an increasingly partisan exercise in recent years such that the judiciary becomes seen as existing to support the executive or the legislature. The important judicial separation from the legislature and the executive has been further damaged in the public mind by the frequent political use of – and political attacks on – the perceived partisan nature of judges and of the Supreme Court.
Like the appointment of judges, the appointment of executive officers is an area where there is a fault line in the formal separation of functions. As with the Supreme Court, these appointment processes have become increasingly partisan, largely obscuring the original idea of testing the technical fitness of officials for the high offices to which they were to be appointed. The Mayorkas case – the first ever attempt to use the extreme action of impeachment against a serving Cabinet member – now speaks to a growing lack of separation between the roles of the legislative and executive branches of government. The case suggests that the partisan sacking of executive officials is an appropriate step for the legislature to pursue.
The drift in the Mayorkas case towards the legislature wishing to exercise executive functions has not been extended to enabling the government to work better – the original purpose of legislative oversight. Ironically – but understandable if we consider the lack of civic underpinning for the current actions – the legislature does not seem intent on practical oversight and improved legal frameworks. Instead it is pursuing a blocking mode in which bipartisanship and practical legislative or funding measures is the enemy.
Separation of powers can feel frustrating at times. It often demands patience and compromise. But we need to reflect on the intentions of the founding fathers and ask ourselves whether the bounds they set are now being overstepped and abused too often. If we forget why separation exists, we forget that America was established to offer the promise of freedom from autocratic oppression and the arbitrary exercise of power.