Congressional Gridlock's Threat to Separation of Powers
65 Pages Posted: 20 Jul 2013 Last revised: 12 Jul 2017
Date Written: February 19, 2013
The principle of separation of powers serves as the foundation of our constitutional system. Though the doctrine’s meaning is somewhat amorphous, at its core rests a simple assumption: each branch must be able to fulfill its functional duties, while also serving to check the other branches. A gridlocked Congress undermines these basic expectations. The result is a legislature that relies on ad hoc committees, triggers, and gimmicks to make law; an executive that fills in the policy vacuum through presidential initiatives and who expands executive power without rebuke; and a judiciary exercising increasing authority over the meaning of statutes. In other words, our separation of powers scheme suffers because Congress cannot fulfill its constitutional role. To appreciate how gridlock threatens separation of powers requires a more complete awareness of the doctrine’s theoretical, historical, jurisprudential, and scholarly roots. From this review, I establish the broad contours of the separation of powers problem that gridlock poses. I then complete the analysis by turning to several real world examples to demonstrate how congressional stalemate actually undermines the separation of powers. In the end, I conclude that congressional gridlock poses such a threat to separation of powers that it places in peril the entire structural premises of American government.
Keywords: separation of powers, constitutional law, Congress, legislation
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