The U.S. Constitution enshrines a system of separation of powers, ensuring that legislative, executive, and judicial branches operate independently while keeping one another in check. This structure is meant to prevent the concentration of power and to safeguard individual liberty. But in recent years, many legal scholars, judges, and concerned citizens have raised a critical question: Has the balance of power shifted too far in favor of the Executive Branch?
Following a brief discussion about what the Founding Fathers believed about separation of powers, this post examines key constitutional flashpoints—executive orders, emergency powers, war powers, pardons, and more—illustrating how modern challenges are testing the limits of our separation-of-powers framework.
What the Founding Fathers Believed About Separation of Powers
The principle of separating government powers into distinct branches wasn’t a novel idea when the U.S. Constitution was written—it was deeply rooted in Enlightenment thought. The Founders were particularly influenced by the French philosopher Montesquieu, who argued in The Spirit of the Laws (1748) that liberty is best preserved when legislative, executive, and judicial powers are held by separate bodies. James Madison echoed this view in Federalist No. 47, writing that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.”
At the Constitutional Convention in 1787, there was broad agreement among the delegates on the need to prevent any one branch from dominating the others. Yet they also recognized that simply dividing power on paper would not be enough. As Madison explained in Federalist No. 51, “[a]mbition must be made to counteract ambition.” The solution was not only to assign separate functions to each branch, but to give each the tools to check the others—like the President’s veto, Congress’s power of the purse, and the courts’ authority to rule on constitutionality.
This careful system of checks and balances was not designed for efficiency; it was designed for accountability and restraint. The Founders assumed that conflict between the branches was healthy and even necessary in a functioning republic. Today’s challenges to the separation of powers raise the question of whether the system is functioning as they intended—or whether it’s time to revisit how well ambition still counteracts ambition.
Executive Orders: Policy Tools or Constitutional Overreach?
Presidents have long used Executive Orders (EOs) to manage the operations of the federal government. However, recent administrations have employed EOs to implement major policy initiatives—on immigration, climate, and public health—especially when facing a deadlocked Congress.
Legal scholars debate whether such usage violates the nondelegation doctrine, a principle rooted in Article I, Section 1 of the Constitution, which vests “[a]ll legislative Powers” in Congress. While the Supreme Court has historically been deferential, recent discussions—see Gundy v. United States, 588 U.S. ___ (2019)—suggest some Justices may be open to revisiting limits on congressional delegation.
Has Congress Delegated Too Much Authority?
Congress often grants broad discretion to executive agencies through enabling statutes, such as the Clean Air Act and the Dodd-Frank Act. This delegation allows regulatory bodies like the EPA and CFPB to issue binding rules.
However, critics argue this “administrative state” can act with minimal congressional oversight. The Court’s decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce No.22-451 was issued on June 28, 2024 . It overruled the doctrine of Chevron deference, holding that courts “must exercise their independent judgment in deciding whether an agency has acted within its statutory authority .
Can the President Withhold Funds Approved by Congress?
Congress holds the “power of the purse” under Article I, Section 9. Yet disputes have arisen over presidential efforts to delay or redirect congressionally approved funds. The Impoundment Control Act of 1974 was passed after the Nixon administration withheld appropriated funds.
More recently, the Trump administration’s 2019 hold on Ukraine military aid sparked a GAO report finding that the executive branch had violated the Act. This raises profound questions about whether any president can effectively override Congress’s spending decisions.
Tariffs and Emergency Powers
Using the International Emergency Economic Powers Act (IEEPA), presidents may declare economic emergencies and regulate commerce without congressional approval. This authority was originally intended to address national security threats—but has been used more broadly, including for imposing tariffs on aluminum and steel imports.
Courts have so far upheld this use of emergency powers, though calls for reform persist. A bipartisan proposal—the ARTICLE ONE Act—seeks to limit presidential declarations unless Congress affirms them within 30 days.
Pardons Without Boundaries?
The President’s pardon power, granted under Article II, Section 2, is nearly absolute in federal criminal cases. While it has been used to right injustices (e.g., Ford’s pardon of Nixon, Obama’s clemency initiative), recent uses—such as President Trump’s pardons of political allies—have raised concerns of self-dealing.
Legal scholars debate whether the pardon power can or should be subject to judicial review. A robust discussion appears in this Harvard Law Review Note on its possible limitations.
Deportation and National Security
The Alien Enemies Act of 1798, still in effect, allows the President to detain and deport nationals of hostile countries during wartime. In modern times, it has occasionally been cited in national security-related immigration enforcement.
Some executive actions have sidestepped traditional due process, raising constitutional questions under the Fifth Amendment. Ongoing litigation in various circuits challenges practices such as expedited removals and administrative detention without hearings.
War Powers: Who Decides?
The Constitution grants Congress the power “[t]o declare War” under Article I, Section 8, while designating the President as Commander in Chief under Article II, Section 2. Yet in practice, presidents have initiated military action without formal declarations, relying on the War Powers Resolution of 1973.
Recent conflicts in Syria, Iraq, and elsewhere have reignited calls for reform. The Congressional Research Service’s report on the War Powers Resolution outlines the legal and constitutional issues at stake.
Nationwide Injunctions and Judicial Reach
Federal courts increasingly issue nationwide injunctions, especially when blocking executive actions affecting immigration, healthcare, or civil rights. While they can provide broad protections, critics argue that such orders allow a single judge to halt national policy.
The Supreme Court has yet to clearly define their scope. Justice Thomas, in Trump v. Hawaii, expressed skepticism about their legitimacy in his concurring opinion.
Executive Defiance of Judicial Orders
Under Article III of the Constitution, federal courts have the authority to issue binding rulings. Yet some recent actions by executive officials—including delays in complying with temporary restraining orders (TROs)—suggest a growing tension between branches.
Such defiance of judicial orders undermines the rule of law and could threaten the functioning of an independent judiciary.
What Role Will the Supreme Court Play?
As these disputes escalate, many will ultimately be decided by the U.S. Supreme Court. With a conservative majority, the Court’s approach to these separation-of-powers questions will be critical in defining the boundaries of executive authority.
Whether the Court reasserts traditional limits—or permits further presidential discretion—will shape constitutional governance for generations.
Final Thoughts
The U.S. system of separation of powers is under stress. The accumulation of executive authority—through emergency declarations, executive orders, and administrative control—is in danger of outpacing meaningful checks from Congress or the courts.
To restore balance, all three branches must recommit to their constitutional roles. Otherwise, the American experiment in limited government and checks and balances may face its most serious test yet.