Separation of Powers

We don't really have one, at least not in the Constitution.

What I mean by that is that the Congress has an almost unlimited reserve of power it could exercise, if it wanted to, to in effect take over the other two branches of the federal government. That power is the impeachment power. If half of the House of Representatives and two-thirds of the Senate want to, they can remove from office any officer of the United States, including the President, the Vice President, the Supreme Court, or any other lesser officers. Imagine if the Congress decided to exercise this power institutionally. Any time anyone, anyone in the government tried to disagree with the Congress, or tried to check its power, they could just impeach and remove them. They could, by the same token, make it known that they would do so, and presumably thereby force all officers of the Government to cower in fear of impeachment, or make a brave stand and be removed from office. The only possible check on this power would be if the Court held that it violated the Constitution, but the Courts have been very reluctant to determine what constitutes a "high crime and misdemeanor," as well as what constitutes a valid trial of an impeachment by the Senate. And if the Court wanted to overturn such an impeachment, well, they would be, uh, impeached. If they overturned that impeachment, well, Congress has the spending power, so I bet it would win that battle.

There are other, less radical, powers that Congress could exercise institutionally that would massively aggrandize it as a practical matter. It could, for instance, have a standing practice of unanimously overriding all Presidential vetoes. No Court in the land could review that. It could make it known, in advance of any judicial opening including those on the Supreme Court, that it would only confirm a member of a short list, and would summarily reject any other nominee the President might make. It could theoretically do the same with members of the Cabinet. In theory that list could narrow to one name. An informal agreement in the Congress that it would only confirm Person X would be unquestionably valid as a matter of Constitutional law, and it would have the complete effect of stealing the nomination power from the President. These would be completely proper uses of Congressional prerogative to consume much of the power of the Executive Branch.

Of course, the only remaining check on Congress would be the people, who would probably vote such an aggrandizing Congress out of office. (I happen to think there's a strong argument for the Congress to do something similar to short-listing judicial nominations, myself, but I imagine I'm in the minority there.) But it is interesting to consider why the Congress does not do that. After all, as my AP American Government teacher was always wont to say, people act institutionally. If the Congress acts institutionally, it ought to do many of these things. But it doesn't, because it acts... partisan. Members of the President's party will refuse to overturn a veto, etc. etc. I think it's worth noting that our functional separation of powers is maintained almost entirely because Congress is a partisan, divided creature, something the Founders desperately desired that it not be. If Congress had stronger consensus, it would likely encroach considerably on the powers the other branches and in particular the Executive currently claim. Now, maybe the Founders would wish that the Congress today had more power and the President less, but they did want the President to have a veto power, and only partisanship maintains that power; they did want the President to have the power of nomination, which exists only on the goodwill and partisanship of Congress. There may be many great things about George Washington, but he was damn wrong about political parties.