The Federalist No. 48, the Separation of Powers, and "the Impetuous Vortex".

• Author: Clement, Paul D.
• Position: Thirty-Ninth Annual National Student Symposium

Given that the focus of the Symposium is on the structural Constitution, what I want to talk about today is the separation of powers and, in particular, James Madison's The Federalist No. 48 (1) and the differences between the strengths of the relative branches of government today versus what Madison envisioned. If you look at The Federalist No. 48, you will see that Madison was most concerned with the power that had been given to the new national Congress. (2) In fact, he famously described Congress in The Federalist No. 48 as the "impetuous vortex" into which all power would be sucked but for the separation of powers. (3) He was particularly concerned about Congress because of the power of the purse. As he wrote, "[it] alone has access to the pockets of the people." (4)

The executive, by contrast, was less of a concern for Madison because, as he wrote, it is "restrained within a narrower compass, and [is] more simple in its nature." (5) The judiciary was even less of a concern for Madison. As he said, "[it is] described by landmarks, still less uncertain," (6) by which I believe he meant the case and controversy requirement of the Constitution. (7)

Madison was sufficiently concerned with the Congress and sufficiently unconcerned about the executive and the judiciary that he wrote, "projects of usurpation by either of these departments,"--the executive or judiciary--"would immediately betray and defeat themselves." (8) Congress, in Madison's view, was not just the most powerful and most dangerous branch, but, if you read The Federalist No. 48 carefully, it is not an overstatement to say that Madison believed that the power of Congress was the raison d'etre for the separation of powers. The checks and balances were there largely to constrain Congress. As he wrote, "it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions." (9)

So, let's take a moment now to compare Madison's vision with our present-day reality. What you see is that both the judiciary and the executive are more powerful than Madison envisioned, and Congress is certainly less active and less of the impetuous vortex that Madison had in mind.

First of all, let's talk about the judiciary. The case for saying that the judiciary is more powerful today than James Madison conceived that it would be is an easy case to make. It is true in the obvious sense that the Supreme Court of the United States today is deciding many of the most fraught and contentious issues that arise in society as a whole, such as issues of race, (10) abortion, (11) and sexual orientation. (12) All of these issues are being definitively resolved in the Supreme Court of the United States rather than in the Congress.

This would not only surprise Madison, but it is fair to say that nobody designing a system from scratch would think it was a good idea to have these kinds of issues decided by nine unelected lawyers who serve with life tenure. And it is not a surprise, as a result, that the Supreme Court nomination process has become fraught with difficulty because of the power now exercised by the Supreme Court. (13)

But the power of the judiciary vis-a-vis the other branches is underscored in less obvious ways too. Right now, a federal district court judge in Ohio is attempting to solve the nationwide opioid crisis armed with tools no more specific than the state law of public nuisance. (14) And that federal judge is not alone in tackling a national problem with very minor and meager judicial tools. Another federal judge in California is trying to address the problem of youth vaping, (15) and there are other federal judges who are being implored to address the global issue of climate change. (16)

At the same time that the judiciary is plainly exercising more power than Madison could have imagined, the executive, too, is more powerful than he envisioned. Now in saying that, I don't mean to enter into the debate about the unitary executive and whether the current executive is exercising the executive power vested in him by the Constitution in a way that is similar to or different than what the Framers had in mind. (17) What I really have in mind is how much authority has been delegated to the executive branch by Congress.

You see this very dramatically in the current coronavirus situation. It is not an overstatement to say that in dealing with this crisis all eyes are on the President. (18) To be sure, Congress worked with the Trump Administration to enact an emergency spending measure that had some minor provisions that went beyond spending to address substance. (19) But the interaction has been telling. As far as I can tell, the principal legislative response to the initial administrative request for funding to deal with this crisis was to say, "You did not ask for enough money, and we need to give you at least twice as much as you asked for." (20) That is an odd use of the power of the purse, to say the least, in terms of constraining the other branches of government.

But there are more mundane examples as well of the executive tackling lots of issues James Madison would have thought were in Congress's bailiwick. One I have run across in my own practice is a recent effort by the FCC to reallocate spectrum to jumpstart the 5G revolution. (21) The 5G revolution is obviously an important issue that should be wrestled with somewhere in the federal government. But the idea that the FCC should do this without any specific direction from Congress does seem anomalous, especially considering that the reallocation of the spectrum is a matter worth literally tens of billions of dollars. (22) Some of these dollars may even be generated for the federal government fisc through an auction of the spectrum, (23) but all of the economic value is going to be reallocated from some parties to others. And all of that does seem, especially given the stakes, something that James Madison would have thought that Congress would have dealt with. (24)

But the biggest surprise to Madison probably would be less that the judiciary and executive are more powerful than that Congress has largely yielded power to the other branches and is anything but the "impetuous vortex" that he feared. And there are plenty of examples of this. I am going to just pick very briefly a couple of obvious examples and a couple of more obscure examples to illustrate that it is a broad-scale problem.

Two obvious examples are immigration and the authorization for the use of military force. Immigration is clearly an issue that the federal government should be dealing with in the main. And there is no doubt that there have been great controversies about the proper immigration policy. Now, perhaps it is precisely because immigration policy is so contentious and divided between the parties that there has not been a congressional resolution of the current controversies. However, whatever the reason, Congress has not changed the immigration laws in any material respect in the last decade, while we have seen very different executive branch policies from the last administration to the current administration. (25) We have seen individuals caught in the middle, such as the DREAMers who were allowed to stay in the country under the Obama Administration despite an arguable lack of statutory authority for the policy. (26) The question of whether the executive has the power to simply reverse that policy is currently before the Supreme Court. (27)

The Authorization for the Use of Military Force passed in September of 2001 is another good example of Congress ceding its powers to the other branches. (28) The attacks of 9/11 prompted Congress into quick and bipartisan action. Congress acted in a way that gave substantial authority to the President, (29) which was probably...