Written by Frank Vibert

America’s system of government is known as standing for the separation of powers between the different branches of government, twinned with checks and balances. It now seems under threat. Newly re-elected President Trump clearly intends to use his Presidential powers to the maximum in order to set the direction of his administration: his party controls both Houses of Congress; He has already in his first term stacked the Supreme Court with right-leaning justices. He also promises to eviscerate the world of independent agencies, including the FED, that bring evidence and epistemic knowledge into policy making and that in today’s world can be seen as representing a separate branch of government. 

The Founding Fathers of the American system warned that wealthy factions could overthrow their system of representative government. They had in mind commercial and land-owning interests or ‘factions’. Trump has brought in the wealthy billionaires of the hi-tech sector to fund his re-election and to remake government. 

There are three questions that arise. First what went wrong – how has it happened that the system suddenly appears so vulnerable.? Secondly, what can be done to defend or restore the separation of powers following any depredations by the new Trump presidency? Thirdly, is the separation of powers worth saving or has it had its day?

What Went Wrong?

Among the soul-searching that is now taking place following the re-election of former President Trump there are two factors that seem particularly tied to the separation of powers. The first centres on the longstanding failure to address income and wealth inequalities in the United States. Montesquieu and the Founding Fathers insisted that such inequalities needed to be addressed as the main business of government. In the election there appeared to be a substantial part of the electorate that did not feel that they had participated in the success of the US economy and that their concerns over job losses and price increases had been ignored. Those immigrants who have been working hard to make a success of their lives have felt threatened by new immigrants who make a claim on resources. Trump was able to appeal to hi-tech wealth for backing at the same time as appealing to those who felt they were losing out in economic status.

The second, related aspect is about identity politics. The opposition to Trump played the same game of identity politics with him and appealed to women and the black vote. But it failed to nullify the ‘them versus us’ argument centred on ‘insiders versus outsiders’. The separation of powers arguably fed this sentiment. By treating the knowledge world of independent agencies as a separate branch of government that deserved protection, technocratic experts could be portrayed as part of the ‘insider elite’ ignoring the ‘common sense’ logic of those outside Washington DC’s Beltway.

What can be done?

Under the separation of powers constitutional change is deliberately made difficult. The Founders wanted change within the framework.  There are three areas for possible change that could be considered without involving constitutional change.

The first would be for much higher taxes to be imposed on the wealthy. In addition, competition law has arguably yet to catch up to the market power of the new platforms. There is also arguably a need to reframe the liabilities that owners should face for sites that are misused.

 A second area of possible change would be for a future Congress to agree to limit election expenditures.  Such a move is unlikely. It would involve inter-party agreement and would require a future Supreme Court to revise its 2010 judgement lifting restrictions on campaign financing by PACS and corporate donors. It likely could not stop wealthy individuals from providing financial incentives to voters directly.

The third area would be for the political parties to be more careful in their candidate selections for Congress. Representation in Congress does not reflect the social composition of the country. It too feeds an ‘insiders versus outsiders’ perception.

What is the continuing value of the Separation of Powers.

Trump’s victory and his control of each of the branches of government prompts finally the question of whether the separation of powers is worth saving. Maybe we should accept that in a world where major decisions have to be taken quickly on the basis of imperfect information and knowledge a Presidential form of government is inevitable and possibly even desirable.

What argues against such a position is that we live in a world where a plethora of information, some true and much misleading or false, is available at zero marginal cost at the touch of a button. The ‘Old Media’ is no longer the main source of information. In these circumstances the protection offered to epistemic knowledge and its integrity by the separation of powers is even more important than in the slow-moving world of the Founders.

We also live in a world where we continue to benefit from the learning qualities of any system of government. As recounted in my book ‘Rethinking the Separation of Powers’: Democratic Resilience in Troubled Times; the Founding Fathers set up a system of government with open ended policy objectives. They wanted those in authority to be able to learn from their mistakes as they went along and to be able to respond to new and unexpected challenges.

In politics, learning takes place in different ways including from electoral defeats and from foreign policy disasters. But there are other avenues, including from Congressional Committees of inquiry, advances in academic understanding and the practical experience of agencies and regulators. These other avenues are a necessary and desirable accompaniment to the short-term horizons, until the next election, of elected politicians.  

In my book ‘Rethinking the Separation of Powers’ I argue that the learning qualities of democratic forms of government remain of fundamental importance and that non-hierarchical relationships between the different branches of government provides the separation of powers with a superior resilience. This is now being put to the test.

Rethinking the Separation of Powers
Democratic Resilience in Troubled Times

Frank Vibert, Associate, Centre for the Analysis of Risk and Regulation (CARR), London School of Economics, UK

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