As long as I can remember, I’ve been told we have three co-equal branches of government in Washington.  Since I was taught it in government-run schools, I’ve heard it espoused from journalists, politicians, and just about everyone else when the topic comes up.  But is that true?

Size Matters

The Constitution does create three branches of government.  Article I creates the legislative branch, Article II the executive and Article III the judicial.  But are they created equal?

Article I consists of 10 sections and is about 2,200 words long.  Article II has four sections and is about 1,000 words long.  Article III has three sections and is only about 350 words long.  Obviously, our Founding Fathers had a lot more to say about the legislative branch than they did about the other two combined.  But is the amount they said all that matters?

Powers Granted

Article I, Section 8 lists the power granted specifically to Congress.  There are over 20 powers granted to Congress, everything from collecting taxes, coining money, declaring war, and even organizing and disciplining the militia.  Article II, Section 2 describes the powers of the President and lists six specific powers.  The President is commander-in-chief, may pardon federal offenses, (except for impeachment), may require reports from executive departments, make treaties (with restrictions), appoint ambassadors, ministers & judges (also with restrictions), and fill vacancies when the Senate is in recess.  Article III, Section 2 describes where the judiciary is allowed to exercise its one and only power.  And what is this “judicial power”?  In Federalist #78, Alexander Hamilton says, “The interpretation of the laws is the proper and peculiar province of the courts.”   So, by looking at the powers granted, we see the three branches are not equal.  But are these the only way to determine equality?

Sphere of Authority

A quick look at the Constitution shows that there are defined spheres of authority for all three branches.  The legislature makes the laws, the executive executes the laws, and the judicial interprets the laws.  But are those the extent of the powers given? You see, the legislative branch not only writes the laws, but determines if members of the executive and judicial branches are following the laws, including the Constitution.  Only the legislative branch has the power to remove a member of the executive or judicial branches.  The chief executive can appoint judges, but only with the advice and consent of the Senate, a part of the legislative branch.  There is no mechanism in the Constitution for the executive or judicial branches to remove a member of the legislative branch. Only the people can do that.  (Originally a state’s legislature could remove one of their senators, but that was changed by the 17th Amendment.)  It is the legislative branch that creates and oversees all federal courts except the supreme Court.  Even the number of justices (beyond the need for a chief justice), is determined by the legislative branch, not the judicial.  As Hamilton put it in Federalist #78:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

The executive has the power of the sword, the legislative of the purse, but the judicial has no power at all, only judgment.

Judicial Review

What about the power of judicial review.? Can the courts not rule a law or executive order unconstitutional and therefore void?  Let’s look at what else Hamilton said in Federalist #78:

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power.

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature.

So, what is to stop a court from substituting their own pleasure to the intent of the constitutional intentions of the legislature?  Two things: Enforcement of the court’s will and impeachment.

Enforcement

While the court has judgment, they have no mechanism to enforce their judgment.  Does that mean the legislative and executive branches can simply ignore the judicial?  To do so would be extremely dangerous, but not without precedent.

On April 27th, 1861, President Lincoln issued an order authorizing the suspension of habeas corpus, (a court order for a jailer to appear in court with their charge and explain the incarceration) in a troubled area between Philadelphia and Washington.  When General George Cadwallader ignored Chief Justice Roger Brooke Taney’s writ of habeas corpus, to produce a prisoner taken in that area, the judge “ruled” that the president did not have the authority to suspend the right.  Article I, Section 9 of the Constitution clearly states “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”  So what did Lincoln do with this challenge to his authority by the court?  He ignored it.  With a clear authority granted to the federal government and no power for the court to bend President Lincoln to their will, the matter ended.

Impeachment

Contrary to popular belief, federal judges are not given lifetime appointments.  Article III, Section 2 states:

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,

Who determines good behavior?  The people through their legislative representatives.  Article II, Section 4 of the Constitution states:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

What are “other high crimes and misdemeanors”?    What I’ve learned from people who have studied the times is that the word “high”, in this construction, refers not to the severity of the offense, but to the office of the person who has offended.  Webster’s 1828 dictionary defines misdemeanor as:

MISDEME’ANOR, noun Ill behavior; evil conduct; fault; mismanagement.

Now if a judge were to violate their oath of office and the law by ruling contrary to the Constitution, would that not be ill behavior?  And would that not violate the term of their stated office, that being good behavior?

Unconstitutional Laws

Like the judicial branch, the legislative branch has no enforcement mechanism.  Should Congress pass unconstitutional laws, then it is up to the president to veto them.  Should the presidential veto be overridden, then the president has a duty to uphold his oath and ask for the court’s opinion.  If the court and the executive agree that a law is unconstitutional, then there is support for the executive not to enforce the offending law.

Executive Overreach

So what if the executive branch acts unconstitutionally, either by doing what they have no authority to do or by abstaining from their duty?  As the most powerful branch of the government, the legislative branch can simply deny funding to the executive branch until the situation is resolved.

Supreme Law

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Constitution, Article VI

In all of the situations we have looked at, one clear standard has been applied: What does the Constitution say?  Power has been divided to help balance conflicting agendas with the goal of preventing any one part of the government from exercising undue power over the others and the rest of the country.  This works because above all three branches is the Constitution and the laws & treaties created within the sphere and scope it provides.  In other words, there is something with authority over all of the federal government and that is the Constitution.  As Alexander Hamilton said in Federalist #78:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Conclusion

In other words, the idea that we have three co-equal branches of government is not only untrue but a mechanism by which the people lose power over the federal government.  I have spent a lot of time discussing the oversight of the judicial branch because it is the judges and the courts who routinely overstep their bounds today.  We are told that once the supreme Court has ruled it is “settled law”, cannot be challenged, and we had better abide by it, but that is not true. Even the court’s opinions have to stand up to the plain reading of the Constitution.  It is up to us to hold all three branches accountable, not only for their actions but how they discharge their duties to restrict the overreach of the other two.  Since the most powerful branch, the legislature, is chosen by us, it is up to us to make sure they are doing their entire job.  If not, it is up to us to find people who will.  After all, it is We The People who established this Constitution and the government it created.

All three non-equal branches of it.