Separation of powers

The law should be written by the legislature, not by the courts.

Separation of powers has always meant something important to me.

And I've seen Justice Scalia talking to the United States Supreme Court on video, of course, YouTube, talking about how important the separated powers are to this country's ability to preserve its greatness and our freedom.

And so separation of powers means so much to me.

Yeah, I mean, these are all philosophical principles that guide decision making.

And so when I became a judge, I began to formulate what I called at first the seven principles of judicial restraint.

And that is that you can begin to believe that there were judges that came before us in old England.

and so now we created judges here and so we have the same authorities and and uh we can do the same things that the judges in in grand old england could do and of course the judges of grand old england were appointed by the king they had the authority of the king and when they decided to say something they were saying it in the name of the king and of course that was law in england but when we said in our united states constitution that we were doing something different we said all legislative powers vested in a congress that separates the power that previously maybe was consolidated in judges themselves into different branches, right? Some of the lawmaking powers in the Congress or in this state in the legislature and the judicial power, the power to decide cases is vested in judges.

It's about keeping the courts out of a role that belongs to somebody else.

Yeah, that seems to be kind of what it was intended to do, protecting the separation of powers.

Some people get to sue to enforce something and some don't.

So let's look at this through an example.

And today I'm going to try to explain two fundamental concepts of American government that students and citizens often confuse, Team Jacob and Team Edward.

Separation of powers and checks and balances.

Team Jacob.

So separation of powers is really simple.

The national government is divided into three separate branches.

The legislative branch, the executive branch, and the judicial branch.

Let's look at United States v. Texas from twenty twenty-three.

This case is an absolute masterclass in the separation of powers.

Let's lay out the facts.

Under the Biden administration, the Department of Homeland Security issued new immigration enforcement guidelines.

They can't just hand out legal advice on abstract questions or propose legislation without a real concrete dispute between adverse parties.

Moving on to Section two, horizontal power, covering Congress and the president.

Okay, now that we've established the judicial boundaries, let's talk about horizontal separation of powers.

The absolute most crucial point here is this: Congress does not possess a general federal police power.

Our roadmap for this journey is going to cover the entire board.

We are going to start with the horizontal separation of powers.

That is the endless tug-of-war between the three branches of the federal government, so the legislature, the executive, and the judiciary.

Okay.

If there is no documented history of state constitutional violations, the congressional remedy is disproportionate and structurally void.

So Congress has immense power, mostly through the expansive Commerce Clause and conditional spending, but the court continually invents doctrines like the non-economic limit in Lopez, the Coercion Doctrine in NFIB, and the congruence test in Boerne to keep a leash on the legislature.

But what happens when the President of the United States decides to act unilaterally, especially during a perceived national crisis? Let's transition to the imperial presidency and separation of powers.

When analyzing the structural boundaries of presidential power, you do not start with the text of Article Two, because Article Two is notoriously vague.

Yes.

and if we don't have this oversight and this separation of powers and this limiting ability in an upper chamber we're really heading down some pretty dangerous...

By limiting you really mean that the House of Lords has the ability to protect by having a look, a second look at policy that's coming through the Commons and saying no this is not good so it's a protection

It's exactly right.

So what Clegg is attempting to do with all this constitutional reform, whether it be the House of Lords or the new Bill of Rights, is to limit the rights and the protections that people have.

And that's why it's such a dangerous thing that they're doing.

One of the key areas that they're damaging at the moment is this idea of the separation of powers.

How do we describe the separation of powers in a simple way? But basically, there's always some kind of oversight in any particular area of government.

Yeah

... because of separation of powers, right? So, like, essentially what I'm gathering is that the wizarding world does not have separation of powers.

[laughs] It's like the Wizengamot, and then they have their lackeys in Magical Law Enforcement running out there being cops.

But they're gonna make the laws, and then they're also gonna be the end of the story, because they're gonna be trying the, the cases-

And that's not allowed.

Now, a broader question could even be, does Congress ever have authority under the Constitution to even enact this? You would have a separation of powers fight at that point if Congress passed the law, because let's say Congress passed the law that enabled all of this to happen.

The states would still make the argument.

You're still infringing on states' rights.

All we have to look at is what law is the U.S.

Postal Service claiming this authority? Let's look at that law.

That law doesn't say you get to do all of this and interfere with state elections, right? In the future, if there was a law that says you interfere with state elections, that could still be challenged on the basis of separation of powers.

But we're not even there yet.