Of the three branches of government – executive, legislative and judicial – the legislative branch is the most powerful. Each branch has a delineated scope of authority with unique responsibilities in the government. The legislature makes the laws, the executive branch implements the laws and the judiciary interprets the laws.
The legislative branch in the U.S. federal government is Congress. Congress has two houses; the House of Representatives and the Senate. Congress derives its power from Article I, Section 8 of the Constitution which directs Congress “to make all laws which shall be necessary and proper.” Congress gains its political power from being the representatives of the people, the repository of many constitutional responsibilities and the object of media attention (Kingdon 34).
The powers of the legislative branch are immense and go way beyond making laws. In addition to passing legislation, Congress can set taxes, approve the federal budget, appropriate funds for programs, declare war and conduct investigations in many areas inside and outside the government (with subpoena power). Congress can propose amendments to the Constitution and has the power to impeach presidents.
The “separation of powers” principle means no one branch of government should be permitted to control or interfere with the operation of another. It was the Founders’ intent that the three branches of government keep each other from becoming too powerful. They feared the concentration of power in a few men would lead to tyranny. The Founders set up a system of checks and balances among the three branches of government. For example, the legislative branch must approve candidates nominated for the U.S. Supreme Court. The executive branch can veto legislation passed by Congress. The U.S. Supreme Court can hear constitutional challenges to state laws.
In this time of Congressional dysfunction in Washington D.C., the separation of powers is blurred. Congress has yet to pass major federal legislation under President Obama’s leadership, as partisan lines have left Congress at a standstill. President Obama (executive branch) has resorted to issuing Executive Orders to accomplish what a law passed by Congress (legislative branch) would. President Obama has warned if an increasingly dysfunctional Congress cannot do its job and pass needed legislation, he will act by Executive Order (Morgan 348). Two areas where he has done so are education and immigration.
In education, President Obama has attempted to correct some of the faults of the No Child Left Behind Act (NCLB Act) because partisan politics kept Congress from reauthorizing the law. His Executive Order permits conditional waivers of the NCLB Act requirements. Instead of a comprehensive law that has passed both houses of Congress, the executive branch acts unilaterally to accomplish education reform (Morgan 354).
President Obama announced his executive order on immigration, Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) on November 20, 2014. This Order deferred deportation of up to five million people. The Order allows low priority undocumented immigrants (not a threat to public safety or national security) a three-year reprieve from deportation (Schulberg 626).
The outrage and controversy ensued immediately. Texas filed a lawsuit (which has not yet been heard on the merits) charging the Executive Order exceeds the President’s discretion and is unconstitutional. This is a judicial check on the executive branch. House Republicans have tried to defund Department of Homeland Security which would implement the Executive Order. The future of DAPA is uncertain.
President Obama has issued Executive Orders concerning the Affordable Care Act, federal minimum wage, Family Leave for federal workers, marijuana and many other areas (Hill 891). The Environmental Protection Agency (also executive branch) has issued regulations for the Clean Power Act without congressional input on climate change. Faced with a hostile Congress, the President is using what means are available to him to accomplish his Administration’s agenda. The Legislative branch remains very powerful even in its inaction, limiting action on the legislative front.
- Hill, B. Jessie. “Executive Discretion and the Administrative State Symposium: Introduction.” Case Western Reserve Law Review 65.4 (2015): 891.
- Kingdon, John W. (1995) Agendas, Alternatives, and Public Policies, 2nd Edition. Addison-Wesley Educational Publishers, New York, NY. 253 pp.
- Morgan, Courtney K. “Executive Action in the Face of Congressional Inaction: Education Waivers Circumventing the Legislative Process.” BYU Educ. & LJ(2014): 347.
- Schulberg, Jessica A. “President Obama’s DAPA Executive Action: Ephemeral or Enduring?” Ariz. L. Rev. 57 (2015): 624-635.
