We’ve talked about the importance of the separation of powers between the three branches of government. But what does each branch actually do?

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Here’s a transcript of our conversation:

Brittany: Hi, Connor.

Connor: Hey, Brittany.

Brittany: So I have been on a separation of Powers Kick lately cuz I think a lot of that has to do with COVID. And we have seen a lot of governors using what they call emergency powers, which means what it sounds like that’s extra powers given to governors and even the President during times of emergencies or uncertainty, which COVID fits both those or checks both those boxes off. So emergency powers are not supposed to last forever. And we could argue on whether or not they should exist at all. Some people say, you know, maybe we should have had the first couple weeks of COVID, you know, okay, we don’t know what’s going on yet. We’ll do this, and this. But I also think there’s an argument that they should never have them because as we’re about to talk about, they don’t like to give those powers back. So a lot of governors have tried to take their emergency powers and hold onto them as long as they can. There’s even one governor in Kentucky, and his name is Governor Bashir, he is one of my least favorite, but he sued his state lawmakers because they tried to reign in or they tried to like to take away his emergency powers cuz he’d used them too long. And he’s suing them now, which is almost unheard of because he’s basically saying, I deserve unlimited power like he’s some sort of king or something. So, separation of powers, I think Emma and I talked about before is a constitutional protection. And what it does is it says that no branch of government is allowed to do the job of another. So just to kind of put this in a fun little, more, relatable situation. So think about your families for a second. Now your parents are the grownups, so they’re the ones working and paying the bills so you can live in a house and have food to eat. So your family may not have a constitution though. I wonder if there’s some families that do that’d be kind of fun if a family constitution, but there are some specific roles they play, right? Everybody has their jobs, maybe the kids have chores or you do something. So imagine if your parents all of a sudden said, you know what? We’re not gonna do this anymore. You have to pay all the bills and the rent. And I think that would be scary because unless you’re one of the millionaire kid entrepreneurs we’ve talked about before, you probably can’t afford that and you probably don’t have a job that will pay for that. So, you know, in this case, your parents will be trying to give you their role. And when governments violate the separation of powers they’re actually trying to take somebody else’s role. Though I guess you could say that your parents are trying to take your role as a child in that little scenario. But, so in our system, we have three branches. We have the legislative, the executive, and the judicial, and we’re gonna get into what those do in a second. So let me just kind of explain that they each have the system of what we call checks and balances and that basically makes sure that each branch has like a check on the other. So if one of them steps outta line and tries to take another one’s role, they can step in and say, wait a second, you can’t do that. So there’s all these protections and again, we’re gonna discuss this more in a second, but it kind of helps keep them in line. So first I want us to understand what each branch does. So I’m gonna have Connor jump into this. I’ve given him the hard part today. So Connor, take it away.

Connor: So, you know, this is the part of the constitution in Article One where it’s talking about what, Congress is going to do. Cuz remember they were creating a new government, they had a slightly different government under the Articles of Confederation. And so they were trying to figure out under this new government, under the Constitution, what would it look like. And there was a lot of debate because some people wanted what was called a uni-cameral legislature. Uni means one like a unicycle. And so that would be a legislature or Congress that only had one chamber. And then a lot of people were saying, well, no, we wanna buy cameral legislature. So buy like a bicycle, two wheels, two things. So two chambers, a House of Representatives and a Senate. So ultimately the delegates debating this decided on a bicameral legislature. So Congress has two chambers within it, but there are a tiny handful of states that in their legislative branches down at a state level, they have unicameral legislatures. I don’t remember which they are off the head so.

Brittany: You said, do you remember? I can’t remember either.

Connor: No, we’ll give that a little homework assignment, yes, for the kids listening, you can go look that up. but having worked with some of these states in the past, through Libertas and trying to help them change laws, it’s really interesting how it kind of changes things, right? You kind of have less of a check and balance. It’s, like if you just get them to vote on something, then suddenly, you know, it’s the law. Unless the governor vetoes it, it’s like, well, isn’t it better to make it go through a little bit more of a hurdle? Do you know? And, rather than making it easier to just pass these laws, if you can just get one group to agree with you. So it’s, kind of interesting. And so in Article One, I’m going to kind of summarize, each section. There’s other stuff in here that is less relevant for what we’re gonna talk about today. So I’ll hit some of the highlights. In section one, it says that all legislative powers shall be vested in Congress and then it says Congress will consist of a Senate and a House of Representatives. So that’s the two chambers of Congress. What’s interesting about this, and maybe we’ll talk more about this in a future episode, is there’s actually a big problem in the past several decades where the legislative powers of Congress are being abdicated. What that means is they’re not really using them. There’s two things that are happening. One thing actually, now I can summarize this in one. One main thing is happening is that the executive branch is more and more setting policy. They’re not passing laws in the traditional sense, but they’re doing two things. One is the president of the United States is passing executive orders that have the appearance of law, right? You must do this, you must do that. We’re gonna go to war, right? All these things where Congress is supposed to play an important role, right? Congress is supposed to declare war. Congress is supposed to say what’s done. And so the President more and more has done through executive order what Congress should be doing, and Congress kind of likes it because then the blame can fall on the President, right? And so they kind of like it cuz oh, they can wash their hands of whatever issue. And so it’s a problem where Congress has kind of gone along with this stronger executive. The problem that that creates is that, you know, that creates a precedent, which means it’s sets an example for future presidents, right? So when a new president comes in, it’s like, well, previous presidents could just do all this executive work, so I’m gonna do those and then a little bit more. And then the new one comes in and he does those and then a little bit more. And we continue to grow the power of the presidency far beyond what the founding fathers intended. They envisioned a weak president who basically just made sure that the laws passed by Congress would be enacted. And then the other problem you have also in the executive branch is that the agencies, the bureaucracies, these are the government, organizations within the executive branch that are supposed to be implementing the laws passed by Congress. Well, what happens is they pass something called administrative rules. So Congress gets together and they say, you know, we think that everyone named Connor should, you know, have to do 10 jumping jacks on Fridays. And then the agency, let’s say it’s the Department of Health and Human Services, excuse me, they’ll pass an administrative rule and they’ll say, okay, Congress said everyone named Connor. So in our rule, we’re gonna say that applies to people also named Conrad or Connor with an O at the end, and Connor with an E at the end. And they get a lot more detailed right in how this works. And then they’ll say, well, Congress said 10 jumping jacks. that means your jumping jacks must, you know, your feet must leave the ground at least three inches and when you spread your legs out, they must be at least a foot and a half wide. Right? And Congress said, Fridays, well that begins at, you know, 1201. And so if you’re awake, you know, past midnight Thursday night, then you have to do your jumping jack set. And so it’s these agencies that do all like the detailed stuff, right? The problem is that when they do those rules, they often go far beyond what Congress intended, or again because Congress doesn’t want to have the responsibility, they like to not do that. They’ll pass these broad laws and then they leave it up to the government agencies to say what is actually going to happen. And so the real policies where the rubber meets the road is being set by these agencies. So the problem is the constitution, the founders, they envision, Hey Congress, you have the responsibility, right, so that people can vote you out and hold you responsible, but they don’t wanna be held responsible. So over time, our system of government has become much worse. But that is the vision in the Constitution. All legislative powers shall be vested in Congress. And then in section two, it talks about the House of Representatives. So here it says, every other year you’re gonna be voted on in the House of Representatives, and excuse me, that if you want to be in the House of Representatives, you have to be at least 25 years old and you have to have been a citizen of the United States for at least seven years. And you have to live in the state where you were elected from. So you can’t be elected as a representative for Florida if you live in Texas, for example. and then the people who are elected to the House of Representatives, they get together and they elect the speaker who’s kind of the leader of, so right now it’s Nancy Pelosi. So they’ll elect who the speaker is. And so that’s just a majority vote. And that speaker, that kind of leader of the House of Representatives has a lot of power to decide what they’re gonna vote on and who’s gonna be on which committee and stuff like that. And so that’s the House of Representatives. Then in section three, it talks about, and this is where we’ll end our review of article one. It talks about the Senate. So in the Senate, it says that each state gets to elect two senators. Now in the house, it’s different, it’s based on population. So as a lot of people move to different states or a new state is created, right, the population changes. And so that changes how many people are, representing that state in the House of Representatives, in the Senate, however, every state gets two. And so the idea that the founding fathers had is that this is a way to make sure that small states still have representation. Because if you take a state like California, you know, or New York or whatever, they have a ton of representatives cuz there’s a lot of population. Well, that means big states could then dominate the smaller states if it was all based on population. So the founder said, you know what, in the Senate, we’re gonna do it differently. And we’re gonna say every state gets to. That way there’s kind of a level playing field for all the different states to make sure that the big ones can’t dominate the little ones. Well then they also said that the, we’ll talk about this in a future episode, but they said in the original Constitution that it would be the state legislatures that were going to decide who their senators would be. That’s right. So all the state, the people in my state, for example, in Utah would come together and they’d say, all right, we’ve elected our representatives and senators at a state level, and then they’re gonna get together in the state legislature and they’ll vote and decide on who is gonna represent the state in the Senate. Well, a future amendment that we’ll talk about another time actually changed that. And that’s no longer what happens. But at the time of the Constitution, it was, and unlike the representatives, if you’re in the Senate, you’re there for six years. So you’re there for a while. And if you wanna be a senator, you have to be 30 years old. So a little bit older than a representative and you have to have been a citizen of the United States for nine years. And then of course you also have to live in the state that you want to represent. Another little interesting quirk about the Senate that is also here in the Constitution is they said, you know what if we have an equal number of votes, so because every state has two, so no matter how many states you have you add, you’re always adding two senators, two senators. And so what happens if a vote is, you know, 40 to 40 or 50 to 50 or however many votes there are? So what the founder said is that the vice president would be the president of the Senate, but the only time that the vice president is allowed to vote is to be the tiebreaker.

Brittany: That’s like his main time to shine or hers, I guess. Yeah. But it’s like really the only thing they do.

Connor: Yeah, that’s kinda the only thing they do as it relates to Congress. And they’ll show up and they’ll cast a deciding vote. But you can imagine that when that does happen, right? That’s a powerful vote. You get to decide what’s gonna happen. and so that’s Congress now that’s Congress, the way the founders envisioned it, obviously, things have changed both because of an amendment that we just mentioned that we’ll talk about another time, the 17th Amendment. And also it’s changed because Congress has just kind of ignored what the Constitution says and they’ve allowed the executive branch to take on more and more because they don’t wanna be held accountable. So the vision of the founders is not quite what we have today, but that was the vision.

Brittany: No, you’re exactly right. And I think we’ve seen a lot of this in during COVID specifically because we just saw the OSHA vaccines, right? That was struck down luckily, but that was OSHA trying to take and the agencies, they are part of the executive. I think that’s confusing cuz sometimes we forget that because the president creates them. So they are part of the president’s, you know, executive. So the OSHA vaccines, they were trying to say that OSHA could say, Nope, you have to get a, a vaccine to work. But the whole thing was if you give OSHA that little power, then they can expand that to pretty much anything they want as far as regulating people who have jobs, which is most people. And another thing we saw is the CDC and the CDC is in charge of The Center for Disease Control and Prevention. They’re in charge of diseases and things like that. But they instituted an eviction ban. So they said, you know what, because of COVID we’re gonna say no, landlords can’t evict their tenants even if it’s because they’re doing bad things on their property. And then that caused a lot of landlords to get into a bad situation because nobody was paying them rent. And a lot of smaller landlords, that’s how they get money. So the CDC had no business doing that. Both OSHA and the CDC d c for these rules would have to have gotten them passed by Congress and they didn’t want to. Now luckily the Supreme Court in the OSHA case agreed, right? They said, Nope, it has to be Congress. So it’s really balanced, scary balance. Yes, it checks and balances, and something that I won’t even try to explain s called the non-delegation principle. But it has to do with the same thing. It basically says Congress, you can’t give your power away. You’re not even allowed to do that even if you wanted to. So I think this is something we need to be very, not only careful of but paying attention to because they’re trying to do that more than ever thanks to COVID.

Connor: And that’s right. The vision was that we would be able to hold these individuals accountable for the way that they voted, but if they’re kind of shirking their duty and not doing what they’re supposed to, it makes it harder for each of us to hold them accountable and make sure, that we can kind of punish them, if you will, for, you know, doing something bad. And so one of the problems with Congress is that so many of them are easily reelected. It’s very difficult to remove someone from Congress who has been doing something naughty. So the vision of the founders is one thing. what we actually have today is another, but obviously, we can’t understand the difference unless we first understand what the founders set up, why they did it, and why those checks and balances were so important for the founders to make sure, that the legislative branch, in this case, Congress would fulfill its responsibility. And we need to get back to a place where you know, they’re doing what they’re supposed to do and then being held accountable for it. That’s, I think, how we can improve. And we’re a ways off from that. We’ll talk a little bit more about this in fu future episodes. But for now, Brittany, thanks for chatting. Great conversation. And until next time, we will talk to you later.

Brittany: Talk to you later.