The New Separation of Powers -- post by Bill Marshall

The presidency has clearly become, as Marty Flaherty writes, the most dangerous branch. Part of this is the result of the ambitions and agendas of those who have held the office. But presidential power will continue to expand regardless of personality.

The reasons for this include: 1) Executive branch control of information. Information is power and because of the practical realities in gathering and analysis, information will inevitably continue to concentrate in the Executive. 2) Media coverage. The president’s image and office are the focal point of media attention. This affords the president with unparalleled power to set the news agenda, demand public attention, and generate political support. The 24 hour news cycle, moreover, gives little opportunity for effective response. 3) Technology and weaponry. Presidential power has increased because of the sheer might of the technological tools the Executive branch now commands. These tools, obviously, can not only be directed externally but can also pose unprecedented threats to individual rights and liberties. 4) Exigency. The increasing need for the president to act quickly in response to exigent circumstances also frees the president to act unilaterally without the participation of Congress and the courts. 5) Breakdown of the old separation of powers model. The era of divided government may have come to an end. Meanwhile, members of Congress may now realistically believe that their political futures rest more with the political successes (or failures) of the president than with protecting their own institutional prerogatives.

All of these factors raise the possibility that the traditional checks against the excesses of presidential power may no longer be adequate (if they ever were). How should constitutional law respond? What is the progressive vision of presidential power?

-- Bill Marshall