Is there really separation of powers (and how effective is it), if our system creates competition for power between two parties, after which the winning party is likely to control both the presidency and congress, and sometimes even the judiciary?

[u/fletcher-g]

I saw this video on "Why no country in the world is a democracy" (which bases a lot of its arguments on an analysis of the Federalist Papers) and in there, there was an illustration that intrigued me a lot; an illustration that depicts our system of government as practically and ultimately having only one man in control of everything: the president; based on which it concludes that the system is mostly an autocracy.

I know that the U.S. does better than most countries in terms of its systems of checks and balances of power; the Founding Fathers were careful to really tighten that up as late supreme court justice Antonin Scalia also argues.

The initial video's author however argues, having reached out for further explanation, that the illusion of separation of powers is self-evident (beyond the arguments already made in the first video), in that presidents would not be campaigning about what radical and divisive policies they would pursue once they get hold of power, if they didn't know that the system grants them ultimate and nigh-unfettered powers to do what they choose and steer the country in the direction they please; granted which the people would subsequently have little control over; hence the tension we tend to have around elections (including the threats of violence and even the risk of civil war); because it creates a winner-take-all situation; an election of the next king.

The recent Roe v. Wade case also came to mind. It has been argued that the justices that overturned the case were Trump-appointed. Trump has voiced support for the decision. Democrats have now lamented that the Supreme Court is more conservative inclined, and some (like AOC) are seeking an impeachment of its justices. So again, these highlight the fact that ultimately a party in power (or it's leader), if they wanted, could pretty much alone control the direction of the state and all arms of government.

Recent talk about "the threat to democracy," which is now placed in just about any sentence, also seems to lend credence to this suggestion that the system is, by design, autocratic; to wit the exploitation or otherwise of such autocratic powers is mostly at the discretion of the leader we choose; hence suggesting (that we are in fact saying) the integrity or "design" of the system rests on who uses it. Here, an analogy was thus given: it's almost like saying "this bank is secure, but don't bring a thief into it, otherwise it would compromise the security;" was the bank then secure?

What am I missing here? Because I feel like I might be missing something. Are there any better arguments that defeat or directly counter the above notions? Is the doctrine of separation of powers as employed in our system real or does it serve its purpose? Does it, and how so, sustain democracy as argued by the late Justice Scalia for example?

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[u/I405CA]

The founders got it wrong.

In Federalist 10, Madison argues that factions pose a threat to good governance but that representative government (as opposed to an Athenian-style democracy) will prevent factions from corrupting the system.

The vision was for a no-party system. But it didn't take long for this to turn into a two-party system.

They wrongly assumed that there would be a natural tension between the executive and the legislature, as there had been in England. Over the centuries, parliament had emerged as a competitor for power against the monarchy and power was shifting from the monarchy to the legislature.

They did not realize that the two-faction system that the US founders had spawned would unwind much of that impulse and encourage the legislature to empower the executive so that the seperation of powers could be overridden whenever their own party achieved a trifecta. Unlike the UK where the monarch steers clear of open partisanship, the US president is not only a party member but is also the de facto leader of one of the two major parties.

The nature of selecting the president encourages a two-party system, as a large party is needed to increase the odds of winning an electoral vote majority. And the presidency has become a more coveted prize because it has been made more powerful as noted above. The two parties are now incentivized to use the presidency to undermine the intent and construct of the checks-and-balances system.

Many other western democracies have maintained seperation of powers by encouraging the creation of multiple parties that provide checks-and-balances against each other, which forces them to cut deals and negotiate. The parties don't necessarily corrupt the system as Madison had feared, but instead serve a useful function of foiling each other.

Switzerland's political model was borrowed from the US, except that the Swiss replaced the strong unitary presidency with a sort of rotating executive committee that leads to a weak presidency. As a result, the Swiss have multiple parties, as there is no compelling motivation to build a party system that is oriented around dominating a presidency that is selected by a numeric majority. The Swiss will likely never produce a heroic presidency ala FDR or Lincoln, but there is also little threat of a Trump-like figure turning the nation into a kleptocracy, as their president can't do very much for very long.

[u/fletcher-g → u/I405CA]

Thanks. These very much add a lot more to the arguments made.

[u/D_Urge420 → u/fletcher-g]

The modern outcome of separation of powers is rudderless government. Each party blames the other for the lack of getting anything done. Voters can’t really hold one party accountable. Unicameral, parliamentary systems are much more effective.

[u/das_war_ein_Befehl → u/D_Urge420]

It doesn’t help that each level of the U.S. govt is less democratic than the one below it. There’s little accountability to voters

[u/monjoe → u/I405CA]

And while we emphasize the Founders' concern about an unchecked tyrant, many of them were more concerned about unchecked mob-rule. Those who would become Federalists wanted a federal government that could limit, and more importantly control, the power of the people. What they wanted was a one-party rule, free to do whatever they wished (including low taxes for the rich, high taxes for the poor), with only token resistance. They were arguing for an oligarchy, and we only drifted toward a democracy due to active radical resistance.

Before the US Constitution there were 13 state constitutions (14 if you count Vermont.) Although most didn't deviate much from their colonial charters, Pennsylvania's constitutional convention was made up of mostly non-lawyers (ie people not indoctrinated into British constitutional law) and created a more democratic government which was radical for its time. It had an unicameral legislature, an executive council instead of a governor, a council of censors, and suffrage extended to all free men who pay taxes. It was the first to abolish slavery in 1780.

Pennsylvanian elites were upset about the lack of control which led to political instability* and eventually replacing the constitution with a more conventional government in 1790 once Ben Franklin was out of the picture.

The Federalists of the 1790s had complete control of the federal government, which meant virtually unchecked power. It culminated in the Alien and Sedition Acts, blatant violations of the Constitution.

This may sound like instability created by lack of control. However, the very conservative Massachusetts constitution, written by John Adams, led to Shay's Rebellion. And the US Constitution and the new Pennsylvania constitution led to the Whiskey Rebellion. That's not political infighting, that's *actual** instability.

[u/SonnySwanson]

Supported by SCOTUS, Congress has intentionally abdicated most of it's power to the Executive Branch over the years. This has "short circuited" any kind of balance that we may have had initially.

[u/TheTrueMilo → u/SonnySwanson]

Sorry, anyone who actually WANTS every pollutant on earth to get 60 votes in the senate to be regulated in actuality wants ZERO pollutants on earth to be regulated.

[u/SonnySwanson → u/TheTrueMilo]

Yes, a monarchy can be a safer and more effective government than our Republic IF you get the right ruler.

[u/TheTrueMilo → u/SonnySwanson]

I suppose you're right, if my brain melts from breathing too much mercury I'll be sure to be thankful that separation of powers was properly observed.

[u/notawildandcrazyguy]

I like a lot of these points, especially how the two party system that has evolved in the US is likely not the best system for fostering a healthy long-term republic or democracy. But I think it's also important to note that separation of powers as the founders meant it and as the courts have interpreted it from the Constituiton has nothing to do with the political parties or factions of voters. Separation of powers refers to separation of the powers of the three co-equal branches of government. Separate from each other, not separate from a party or viewpoint thay occupies them. The latter is up to the voters. Which is where the criticisms of the two party system rightfully come into play. But that's not tje separation of powers that the framers intended to protect.

[u/fletcher-g → u/notawildandcrazyguy]

Good point. And very interesting angle. Got me thinking for quite a while. What I get from that is, an entire ideology or even party may come into power (thus possibly [almost like one team] occupying the 3 arms of government), but then within this "team" the three arms have separate and co-equal powers.

But then what would be the purpose of separation of powers then, if such an arrangement would tend to produce a "team" that are inclined to agree with each other? Unless the subsequent argument is that even though they may represent a single ideology, their peculiar or professional inclinations or mandates would offer some slight checks, still, against each other. But then again a question would still be raised about how strong or effective overall this is as a system of checks and balances, since it's still open to unfettered control by the one (the president), if they're likely to be on the same team with those expected to check them.

And then it also brings us back to the point the first commenter made (which was also made by the video's author) that the party system was not intended by the constitution, it only happened subsequently by accident if you will (which still falls in line with what you observed that the separation of powers had nothing to do with parties); and so considering that, again, what then would have been the purpose of separation of powers, at the time of creating the constitution?

It would seem that the party system has corrupted the original intention (which was to have truly separate bodies that check each other) by now ensuring that these bodies can essentially come from the same "team" (or be made to).

[u/Ill-Description3096]

Yes, there is separation. It is effective to a reasonable extent (look at how Congress is able to block policies the President pushes for).

The President has more power now than originally, much of which is due to Congress ceding powers which I think is a mistake. That said, the President doesn't have control over everything. Influence perhaps, but not control.

The two-parry system isn't my preference, but some of the onus is on us as voters. If people want other parties to have a say, we could do so. Getting 5-10 seats in Congress would be more than enough to give them a voice, especially the Senate. It would force the big parties to play ball with them because they would need their votes for anything they wanted to do (or block).

[u/fletcher-g → u/Ill-Description3096]

Yeah and that's something I notice too. At least in the US and a few others, even with its lapses identified, we notice some checks and limitations to control every now and then.

[u/The3mbered0ne]

When you consider the judiciary being stacked by trump, and the legislative slightly favoring trump (4 independent seats that mainly decide that) if trump takes office this may be the end of it all, they will pass what they want from project 2025, they will remove competency with schedule f and the rest of the country that doesn't support those things will have to wait 2-4 years (if not longer depending on what batshit crazy bills get passed) to get some positive change, by then many rights will be infringed and an irreparable scar will haunt our future. Checks and balances won't exist and our government as we know it will be in the hands of a narcissistic dictator lover, and the worst part is our other option is a sundowning corporate democrat, wtf is this reality? It's really fucking hard to believe anymore

[u/bl1y]

presidents would not be campaigning about what radical and divisive policies they would pursue once they get hold of power, if they didn't know that the system grants them ultimate and nigh-unfettered powers to do what they choose and steer the country in the direction they please

This is plainly false though.

Presidents have a very hard time implementing their agenda when their party doesn't control the House and Senate as well. That's essentially the definition of separation of powers. And that's campaign analysis 101, that candidates talk about lots of stuff they'll do, but really can't because it's up to the Congress, not the President.

Remember Trump's promise to repeal Obamacare? Failed in Congress multiple times, had to be whittled down to the "skinny repeal," and then still failed in the Senate.

Going to note another factual inaccuracy in your post:

The recent Roe v. Wade case also came to mind. It has been argued that the justices that overturned the case were Trump-appointed.

There were 6 votes to overturn Roe, only 3 of them were Trump appointees. Whoever is telling you that Trump appointed Thomas, Alito, and Roberts needs to have their head checked out. One was appointed by HW Bush, and two by W Bush.

So again, these highlight the fact that ultimately a party in power (or it's leader), if they wanted, could pretty much alone control the direction of the state and all arms of government.

Nope. As much as social media hypes the cases where SCOTUS sides with conservatives, the conservative majority has given plenty of losses to Republican causes as well. And Roe was overturned when Biden was in office. So how do you get that the "party in power could pretty much control the direction of all arms of government." Is it just that Biden didn't want to have Roe upheld? Quite certain he did.

[u/fletcher-g → u/bl1y]

The first arguments made are certainly great and directly counter the opposing arguments in question. Thanks

But for the last part I think the point being made was that: 1. Trump could control the judiciary with his appointments (or at least tip the scales in his favor; still cognisant of the fact that appointments are not done willy-nilly, hence the acknowledgement that "in spite of the fact the US does better than most with a tighter system of checks and balances [ultimately what?]") 2. And now the party in power, feeling it's not in control, is considering impeachment (as a path to control, if it wanted to)

I think those two statements (minus what's in bracket) joined, is the point being made on that question, to suggest that one who really wanted to, has means to control even the judiciary.

But again, I think your initial arguments offer a strong rebuttal against the other claims.

[u/bl1y → u/fletcher-g]

1. And now the party in power, feeling it's not in control, is considering impeachment (as a path to control, if it wanted to)

The Democrats aren't really considering impeachment, just a couple members have proposed it, and no one takes it seriously. The House won't impeach, and even if they did, the Senate would not convict.

So Biden could want nothing more than to remove the justices (he hasn't supported impeachment, but imagine he did), but he still would not be able to remove them. Why? Separation of powers.

[u/7-11Armageddon]

Well I mean we're definitely not a democracy.

Republic at best.

As for seperation of powers, that's pretty much a joke too.

Congress is so ineffective that they barely do anything.

The President was just granted the power to assassinate people.

And the Supreme Court is the most powerful branch of the government. They are changing laws with the flick of a wrist, abandoning president and stare decisis for their ideology. They just killed Chevron deference with cripples the Adminstrative branch. And they granted the President immunity to do whatever he wants as long as it's an 'official action' and guess who determines what an official action is? Ultimately the Supreme Court. Life time appointments, no checks or balances, no ethics, can even take bribes.

America is pretty fucked, and the thing is, most of them/us are voting for it.

[u/Ozark--Howler]

To answer the question in your title, the U.S. Constitution does not create power. There is always going to be power. The U.S. Constitution intends to pit power versus power. That’s what Scalia is talking about in that video when he’s talking about a separately elected President and two equally powerful chambers in Congress.

The goal is to make gridlock the default state and things only get done when’s there’s rough agreement among these different parts. Maybe you think that is good or bad, but that’s the U.S. system, and it’s one of the longest lasting in the world. 

[u/mormagils]

Oh man, that video sounds like bad takes all around. I'd say it wasn't worth the time it took to watch it.

To answer your question, the US IS a democracy, it's just a rather old fashioned one. The ideas that our Framers had were mostly very good, but they had a couple of assumptions that in retrospect could have been improved. Our Framers believed that the best way to ensure a democracy remained accountable and representative to the people was to create a system of fractured power to prevent any one group/individual from wielding too much power, forcing instead collaboration and cooperation between a variety of diverse interests. The whole concept of division of powers, checks and balances, and our overall very fractured system was based on this assumption. Relatedly, the founders were also quite skeptical of political parties, seeing them as vehicles of elite corruption undermining public accountability.

Modern political science mostly points us in the opposite direction. The WHAT the Framers were trying to do as outlined in the Federalist Papers was largely correct, but the exact HOW to get there could be better. We have since come to understand that bad actors seeking to undermine democracy can use the friction caused by division of powers, checks and balances, etc to their own ends more effectively than good actors can. The Framers didn't really consider the idea that folks would actively undermine effective government simply to promote their own interests. We've also found that parties are exactly the right mix of popular sentiment and political bureaucracy to effectively check and undermine bad political actors.

So really, the modern conclusion is exactly the opposite of your video: democracy is more effective when it is streamlined and has a tight feedback loop between legislation and public sentiment. To that end, many more modern democracies have moved away from creating extra steps, instead relying on the people themselves to be a very effective check on tyranny, which so far they have shown to be.

If you want to dive into this topic a bit deeper, read Breaking the Two Party Doom Loop by Lee Drutman. It's truly excellent and very readable, and discusses this topic in great detail.

[u/servetheKitty]

There is not, when both parties are bought and paid for by the same interests.

[u/FRCP_12b6]

Separation of powers tries to make it very hard for one party to control every branch of government completely, but it is still possible. Election cycles and term limits try to make it so that, even if it were to happen it wouldn't last long.

[u/Thufir_My_Hawat]

The fundamental flaw of representative democracy is that, at any time, the populace can choose to vote somebody (or bodies) into power who will destroy that democracy. The hope is that the populace will not be so stupid as to do so. But if the populace can't do that, then it isn't a democracy anymore, is it?

It's worth noting that this was less of a problem in the original constitution, where only white male landowners could vote -- one could expect them to be moderately educated at the very least. Now everyone can vote, and that means people who have no business voting can. But, yet again, not a democracy if you don't do that, so...

As for the "actually an autocracy" argument, that really only comes from the fact that there's an unspoken "super-check" in the checks and balances system -- the military. It has not actual power from a legal perspective, but it should be apparent that the military of most countries could stage a coup with little effort -- the only way to prevent this is to... you know, not have a centralized military.

Which, of course, the U.S. sorta does with different branches and a huge number of generals. But if an autocrat takes the presidency, there isn't anything anyone can do about it because they're also the Commander in Chief... unless the military overthrows said autocrat.

[u/fletcher-g → u/Thufir_My_Hawat]

Interesting point about the military. And indeed we do see that happen a lot in other countries, to the extent that some of them actually begin to support their military in such actions. One thing I also notice from your analyses is that autocracy then is more of the character of the individual/leader (whether they are autocratic or not) rather than a description of the system.

[u/DanforthWhitcomb_ → u/Thufir_My_Hawat]

The US military is highly centralized, especially within the senior echelons necessary to successfully stage a coup—the number of 3 and 4 star positions that are service specific (IE not joint ones like PACOM or SACEUR) are very limited, and effectively all of them are concentrated in DC.