Separation of Powers vs. Checks and Balances: How America Prevents Tyranny

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Shortly before 11 p.m. on January 27, 2025, an email went out from the Deputy Director of the White House Presidential Personnel Office to Gwynne A. Wilcox, telling her she was off the National Labor Relations Board (NLRB). A federal judge in Washington later found that the termination was not preceded by “notice and hearing,” that no “neglect of duty or malfeasance” was identified despite the explicit restrictions on removing a Board member, and that the email cited only political motivations.

Wilcox sued. The district court ordered her back, and the government went to the Supreme Court, which on May 22, 2025, stayed the orders enjoining the President’s removal of a member of the NLRB and a member of the Merit Systems Protection Board (MSPB). Nobody in that fight disagreed about what the Constitution says. They fought about a lever: whether a statute can stop a president from firing someone.

That is the shape of almost every current dispute, and it is the answer to the question most people arrive with. The Constitution’s assignment of powers is barely disputed; nearly every live fight is about the checks, and Congress has stopped using most of its own, which leaves judges policing a boundary the political branches used to police against each other.

A floor plan is not a set of levers

Separation of powers is the floor plan. It says which branch owns which job. Checks and balances are the levers: the ways each branch reaches into another branch’s room. They are two different things sitting in the same document, and running them together is why people argue past each other.

The floor plan lives in three sentences called the vesting clauses, and they are not written alike. The Constitution Annotated, as published by Cornell’s Legal Information Institute, sets them next to each other: Article I provides that “All legislative Powers herein granted shall be vested in a Congress,” while the Article II Executive Vesting Clause “does not limit the ‘executive Power’ in any way.”

Two words carry a lot of freight there. “Herein granted” appears in Article I and nowhere else, which is a way of saying Congress has the powers on the list and no others. Article II has no such qualifier. That missing phrase is the seed of every modern argument about what a president may do that no statute mentions.

James Madison thought the floor plan mattered more than any single lever. In Federalist No. 47 he wrote that the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, “may justly be pronounced the very definition of tyranny.”

The men drafting it argued about how many levers to install, and voted some of them down. On Monday June 4, 1787, in Committee of the Whole, the Convention took up a Council of Revision that would have seated federal judges alongside the president to veto bills. Elbridge Gerry moved instead to give the Executive alone without the Judiciary the revisionary controul on the laws, subject to being overruled by two thirds of each branch, and his motion carried with only Connecticut and Maryland voting no.

Gerry’s reason is worth keeping in mind for the rest of this. He thought judges did not need a seat at the veto table because they already had a check, through deciding cases. The veto Americans live under is the runner-up design, and the judicial check the Convention counted on instead is the one now doing most of the work.

Purse, sword, pen: the operative sentences

Congress holds the money, and the sentence saying so is one line. Article I, Section 9: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”, followed by a requirement that receipts and expenditures be published from time to time.

Congress also holds the war power, and a leash on the army that surprises people. Article I, Section 8 gives it power “To declare War, grant Letters of Marque and Reprisal” and to “raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” The two year limit sits inside the army power itself.

The president’s operative sentences are shorter. He is “Commander in Chief of the Army and Navy of the United States”, and of the state militias when they are called into federal service. Under Article II, Section 3, “he shall take Care that the Laws be faithfully executed”. That is the whole of the constitutional job description for running the government: execute what Congress wrote.

The judiciary gets even less, and Congress fills in the rest by statute. The number of justices is not in the Constitution at all. 28 U.S.C. § 1 provides that the Supreme Court shall consist of a Chief Justice of the United States and eight associate justices, any six of whom make a quorum. An ordinary law set that number, and an ordinary law could change it.

Why the branch with the shortest job description decides the most

A company called J. W. Hampton, Jr., & Company brought a shipment of barium dioxide into New York and got a bill it had not budgeted for. The collector of customs assessed it at six cents per pound, two cents more than the rate fixed by statute, because President Coolidge had raised the duty by proclamation under the so called flexible tariff provision of the Tariff Act of 1922.

The company argued that Congress cannot hand its taxing power to the president. It lost. The Supreme Court, on certiorari from the Court of Customs Appeals, decided the case on April 9, 1928, treating a statute that empowers and directs the President to raise or lower duties to equalize production costs as a lawful delegation.

That decision is the ancestor of the modern administrative state, and the test it produced is famously forgiving. A statute must supply an “intelligible principle” to guide the official, and not much more. Reviewing the Supreme Court’s decision in FCC v.

Consumers’ Research, the Congressional Research Service (CRS) reported that the current Court is content to leave the intelligible principle test in place, could reassess the standard in a future case, and that leaving the test in place “does not necessarily suggest a willingness to rubber stamp delegations of authority.”

So the reason the president appears to decide everything is not that he took power from Congress. Congress handed it over, statute by statute, and the courts blessed the handover. Every rule about your workplace, your water, your prescription drug or your import duty exists because a law told an official to work out the details.

The executive branch has been consolidating control over those officials. Executive Order 14215, “Ensuring Accountability for All Agencies,” signed February 18, 2025, requires independent regulatory agencies to route significant regulatory actions through the Office of Information and Regulatory Affairs, and requires their chairmen to submit agency strategic plans to the Director of the Office of Management and Budget (OMB) for clearance, and to install a White House Liaison at grade 15 of the General Schedule.

The same order states that the President and the Attorney General shall provide authoritative interpretations of law for the executive branch.

The checks that run every week and nobody calls a crisis

Plenty of the machinery works quietly. The veto is the clearest case. The Senate’s own tally records 1,533 regular vetoes and 1,066 pocket vetoes, 2,599 in all, of which 112 have been overridden. Set those two numbers beside each other and you have the practical rule: when a president says no, that is usually the end of it.

Appropriations riders are the reverse lever, and they are everywhere. The Consolidated Appropriations Act, 2024, signed March 9, 2024, carries the standard formula in its general provisions: “None of the funds made available by this Act may be used” to carry out the closure or realignment of the United States Naval Station, Guantanamo Bay, Cuba. A rider does not tell the executive what to do. It attaches a condition to the money, so the money legally cannot go there whatever other authority exists.

Quieter still is committee sign off on moving money between accounts. CRS records that at the Pentagon, only when “the final committee approval has been received” is an implementation memorandum prepared, with approval required from the Appropriations, Armed Services or Intelligence Committees depending on the request.

And the Senate’s confirmation power runs continuously. The notes to the judiciary code record that appointment of judges of the Supreme Court by the President by and with the advice and consent of the Senate comes from Article II, Section 2, Clause 2. None of this makes news, which is the point: a check in working order looks like paperwork.

Dead letters: the levers Congress stopped picking up

Now the other column. Several of Congress’s most famous powers have not been exercised in living memory, and the dates are specific enough to be uncomfortable.

Chadha’s case is worth telling, because of how small it was. Jagdish Rai Chadha was a citizen of Kenya who stayed after his student visa expired, met the statutory criteria for permanent residence, and had his deportation suspended by the Immigration and Naturalization Service.

Then one chamber of Congress cancelled that by resolution, under a provision of the immigration law that authorizes either House of Congress, by resolution, to invalidate a decision of the executive branch. The Court held that unconstitutional, and half a century of legislative vetoes went with it.

What replaced them was not nothing. The committee approval language never left the statute books, and agencies keep asking anyway, because they need the same committees again next year. The formal check died; the informal one that took its place is invisible, unreviewable, and entirely dependent on goodwill.

Then there is contempt of Congress, which looks fearsome and has a specific failure point. In 1982 two House committees subpoenaed Environmental Protection Agency (EPA) Administrator Anne Burford for litigation documents about enforcement of the Superfund law. At the direction of President Ronald Reagan, she refused to disclose the files on executive privilege grounds, and the House approved a criminal contempt citation under 2 U.S.C. § 192 and § 194.

The citation went nowhere, and two years later the executive branch wrote down why. The Justice Department’s Office of Legal Counsel (OLC) was asked by the Attorney General whether a United States Attorney must prosecute or refer to a grand jury a contempt citation against an executive official who asserted privilege on written instructions from the President. Its answer: the contempt of Congress statute does not require the United States Attorney to refer such a citation to a grand jury.

Read that slowly, because it is the whole problem in one sentence. Criminal contempt runs through a prosecutor the president appoints and can remove. A check that needs the other branch’s cooperation to fire is not really a check.

When both branches say yes, somebody has to lose

At 9:50 p.m. on April 8, 1952, Harry Truman signed Executive Order 10340 at the White House. It authorized and directed the Secretary of Commerce to take possession of all or such of the plants, facilities and other property of the steel companies named in an attached list “as he may deem necessary in the interests of national defense,” and to operate them.

The steel seizure lost in court, and it produced the framework judges still use. Justice Robert Jackson’s concurrence sorted presidential power by what Congress had done about it. With Congress behind him, a president is at his strongest. Where Congress has said nothing, he is in “a zone of twilight in which he and Congress may have concurrent authority”. Against Congress, “his power is at its lowest ebb”.

That framework is why dormancy matters so much. Jackson’s three boxes are sorted by what Congress does, so every check Congress declines to use moves a dispute out of the third box and into the twilight, where the president generally wins.

Sometimes a member of Congress goes to court personally. Representative Mike Synar of Oklahoma did, over the 1985 Gramm-Rudman-Hollings deficit law: Congressman Synar, who had voted against the Act, filed a complaint for a declaration that it was unconstitutional, and eleven other Members joined him.

Argued April 23, 1986, and decided July 7, 1986, the case held that the Comptroller General could not be given the job of executing the law, because Congress had kept the power to remove him. An officer Congress can fire is Congress’s agent, and Congress may not have its own agent execute a statute.

Getting a ruling is one thing, getting through the door is another

Synar was unusual. Far more often, legislators who sue are told they are the wrong plaintiff. CRS, in its report on legislative standing, explains that where individual Members sue over harm to the institution, courts have treated it as “the same type of institutional injury” the Supreme Court found insufficient in Raines v.

Byrd. In Cummings v. Murphy in 2018, minority Members of the House Oversight Committee seeking documents under a federal statute tied their injury directly to their duties as legislators, and the district court still found they had fallen short.

Even when Congress does get in, the clock defeats it. The House Judiciary Committee subpoenaed former White House Counsel Donald F. McGahn II, and on November 25, 2019, the district court ordered him to comply. The district court ordered him to comply on November 25, 2019, the appeals court stayed that two days later, a panel ruled 2 to 1 that Congress lacked standing, and rehearing before the full court was granted in March 2020.

It ended in a deal: on June 4, 2021, McGahn provided closed door testimony, and six days later the parties jointly moved to dismiss and to vacate both the judgment and the panel opinion.

Two years of litigation, one closed door interview, and the precedent erased on the way out. That is not a check failing loudly. It is a check dissolving.

The Senate does have a civil enforcement statute, and it wrote its own exception into it. 28 U.S.C. § 1365 directs a district court to order compliance with a Senate subpoena, but the section “shall not apply to an action to enforce” a subpoena issued to an officer or employee of the executive branch acting in an official capacity, unless the refusal rests on a personal privilege rather than a governmental one the executive branch has authorized.

Which means the tool switches off at exactly the moment an oversight fight becomes real. The instant the White House blesses a privilege claim, the Senate’s statute stops applying.

Congress can also move the courthouse. William McCardle was a civilian newspaper editor held in custody by military authority for trial before a military commission, on charges built on articles the government called incendiary and libellous.

While his appeal was pending in the Supreme Court, Congress repealed the very habeas appeal provision he had used, and the Court dismissed his case for want of jurisdiction, saying judicial duty is not less fitly performed by declining ungranted jurisdiction. Judicial review is a check, but the size and reach of the courts are set by statute.

And a ruling still has to be obeyed. Protect Democracy, an advocacy organization that campaigns on compliance with court orders, cites a Washington Post analysis of more than 160 lawsuits finding that the administration has been accused of flouting courts in roughly one third of the cases in which a judge issued a substantive ruling, and reports a Minnesota federal judge documenting 96 violations of court orders by Immigration and Customs Enforcement (ICE) in his district in January 2026.

The group’s own term for the harder pattern is “legalistic noncompliance,” meaning specious arguments and delay rather than open defiance. Those are accusations logged by a group with a position, and the counts come from a newspaper and a court rather than its own docket review.

Money appropriated, money not spent

Here is where this reaches an ordinary budget. If Congress appropriated money and the president signed the bill, is the money guaranteed? Not quite, but the default runs in favor of spending it.

The Impoundment Control Act, at 2 U.S.C. § 683, requires a president who wants to cancel budget authority to send Congress a special message proposing the rescission. Congress then has 45 days of continuous session. If it does nothing, the money “shall be made available for obligation”, and funds released that way “may not be proposed for rescission again.” In plain terms: silence releases the money, it does not cancel it, and the same money cannot be targeted twice.

Courts have enforced that logic even against a program’s own administrator. In Train v. City of New York, the EPA Administrator allotted the states less than the full sums the 1972 clean water amendments authorized, and the Supreme Court held that the 1972 Amendments do not permit the Administrator to allot to the States less than the entire amounts authorized to be appropriated.

The referee in ordinary cases is the Government Accountability Office (GAO), which publishes a decision for each dispute and tags it Violation or No Violation. It goes both ways.

In 2025 GAO found a violation over Head Start funds at Health and Human Services, B-337202, on July 23, 2025, no violation the same day over a Bureau of Reclamation water recycling pause, a violation on June 16, 2025, at the Institute of Museum and Library Services, and no violation that day over an Energy Department response to a presidential memorandum on wind energy.

The sharpest current dispute is about timing rather than authority. GAO’s decision B-337805, dated September 12, 2025, describes the mechanism: the President proposed rescissions from 15 accounts on August 28, 2025, and on August 29 OMB approved a letter apportionment withholding those amounts.

All 15 accounts were due to expire at the end of fiscal year 2025, while the 45 day congressional clock ran to October 23, 2025. GAO pointed to its earlier conclusion that the Act does not permit withholding funds past their expiration date even if the 45 days have not run.

Strip out the accounting language and the argument is simple. If the money dies before Congress’s clock runs out, then doing nothing cancels the spending instead of releasing it, which reverses the default the statute wrote.

Somebody is at the other end of a frozen grant. Max Rykov arrived in the United States from the collapsing USSR in 1993, aged four, and grew up to be director of development and communications at the Nashville International Center for Empowerment, a refugee resettlement group.

ProPublica reported that when federal reimbursements stopped, the center laid off 12 of its 56 resettlement staff members and scrambled to free up funds for the basic needs of nearly 170 people who depended on the frozen grants.

Who the president can fire

On July 25, 1933, Franklin Roosevelt wrote to William E. Humphrey of the Federal Trade Commission (FTC) asking him to resign, on the ground that the aims and purposes of the Administration could be carried out most effectively with personnel of his own selection, while disclaiming any reflection on Humphrey personally. Humphrey would not go. On October 7, 1933, Roosevelt removed him outright, and Humphrey died the following February with his salary unpaid.

His executor sued for the money, and the case became the foundation of the independent agency. The Court held that because the FTC Act allowed removal for inefficiency, neglect of duty, or malfeasance in office, Congress intended to restrict the power of removal to one or more of those causes. Policy disagreement was not on the list.

Ninety years of narrowing followed. In Seila Law LLC v. Consumer Financial Protection Bureau, the Supreme Court declined to extend these precedents to an independent agency led by a single Director vested with significant executive power, reasoning that the Bureau’s structure had no foothold in history or tradition and that Congress had given such protection to sole officeholders in only four isolated instances.

These cases reach the Court through unlikely plaintiffs, because of how the system makes you buy a ticket. In 2017, the Consumer Financial Protection Bureau (CFPB) issued a civil investigative demand to Seila Law LLC, a California debt relief firm, seeking documents about its business practices; the firm asked the Bureau to set the demand aside on separation of powers grounds, refused to comply when the Bureau declined, and the Bureau went to court to enforce it.

The accounting oversight board case worked the same way. An unflattering inspection report was not subject to judicial review, so the government’s own proposal was that Beckstead and Watts incur a sanction, such as a sizable fine, by ignoring Board requests for documents and testimony, and litigate from there. The small Nevada accounting firm’s constitutional argument was that Board members were insulated from Presidential control by two layers of tenure protection. To test a removal statute, in other words, you generally have to be fired or be sued first.

When the Court stayed Wilcox’s reinstatement, it carved out the central bank in one sentence, calling the Federal Reserve a uniquely structured, quasi-private entity following the tradition of the First and Second Banks of the United States. Justice Kagan’s dissent said the majority’s own authority for that carve out provided no support, and turned the disruption rationale around: by re-removing officials the lower courts had put back, the order itself caused the disruption.

The strongest version of the president’s side does not rest on convenience. Writing for the Hoover Institution, Ilan Wurman argues that the vesting clauses permit only Congress to make law and the President only to execute it, so that for properly executive functions the President must have plenary removal power.

His version is narrower than the caricature: where a commission exercises delegated legislative power, he allows that Congress can insulate it, and he describes his own position as recognizing at most a limited unitary executive, rejecting the idea that a president must direct rulemaking.

The strongest version of the other side is about what the commissions are for. The Supreme Court took up the Slaughter case after President Trump fired FTC Commissioner Rebecca Slaughter, and his email firing her did not cite any for cause removal criteria.

Public Citizen co-president Robert Weissman put the case this way: “Independent agencies are the guardians of American consumers, workers, and investors.” They have held corporations that rip off Americans accountable and forced dangerous products off the market, he said, and stripping their independence lets any president politicize them.

Both arguments are about the same fact and disagree about whether it is a bug. A commissioner insulated from the president is insulated from the last election. A commissioner removable at will is answerable to the last election, and to nothing else.

Emergencies that do not end, and tariffs by proclamation

Emergency statutes are where dormancy becomes visible in a household budget. The Brennan Center for Justice has identified 137 statutory powers that may become available to the president when he declares a national emergency, with an additional 13 available when Congress declares one. Most of them nobody has heard of until they are used.

Congress built an off switch and then made it harder to reach. Under 50 U.S.C. § 1622, an emergency ends when a joint resolution terminating it is enacted into law or the President proclaims its end, and subsection (b) requires that not later than the end of each six-month period the emergency continues, each House shall meet to consider a vote on terminating it.

The instrument changed after the legislative veto fell: in 1985 Congress substituted “there is enacted into law a joint resolution terminating the emergency” for the original text, which had let Congress terminate by concurrent resolution.

That swap is the single most consequential sentence in this article. A concurrent resolution takes majorities in both chambers and stops there. A joint resolution goes to the president’s desk, so ending an emergency he wants to keep now takes two thirds of both chambers. Congress raised its own bar, and the six month meetings sit on the books unexercised.

The war powers clock has the same character. Under 50 U.S.C. § 1544, within sixty calendar days after a report is “submitted or is required to be submitted”, whichever is earlier, the President shall terminate the use of armed forces unless Congress declares war, enacts a specific authorization, extends the period, or cannot meet because of an armed attack. Not filing the report does not stop the clock, which is careful drafting; whether the clock is ever enforced is a separate question.

Then tariffs. The International Emergency Economic Powers Act (IEEPA), at 50 U.S.C. § 1702, lets a president “investigate, block during the pendency of an investigation, regulate, direct and compel”, nullify, void, prevent or prohibit dealings in property in which a foreign country or its nationals have an interest. The words duty, tariff, impost and tax do not appear in that sentence. That absence became the entire case.

Five small businesses made it. V.O.S. Selections, Genova Pipe, MicroKits, FishUSA and Terry Cycling told the U.S. Court of International Trade they had suffered economic injury from the tariffs, with V.O.S. pleading difficulties with sourcing and pricing and arguing that reduced cash flow shrinks its inventory and the level of business it can do.

A three judge panel agreed on May 28, 2025: the Tariff Orders exceed any authority granted to the President by IEEPA to regulate importation by means of tariffs, and the orders were vacated and permanently enjoined. The Federal Circuit agreed on August 29, 2025, finding no clear congressional authorization by IEEPA for tariffs of that magnitude, and on February 20, 2026, the Supreme Court took up the question of whether IEEPA authorizes the President to impose tariffs and affirmed.

If you import anything, that is the boundary running through your invoice. A word missing from a 1977 statute decided whether a rate set by proclamation could be charged at the dock.

What Congress could do without amending anything

Almost every lever described here is ordinary law, which means an ordinary majority could sharpen it. Congress could delete the executive branch exception from its own subpoena statute. It could put deadlines and consequences into the impoundment process rather than relying on a 45 day silence. It could write sunset dates into emergency authorities, or into the tariff statutes, instead of relying on itself to vote them down later.

It could also rebuild the staff that makes oversight possible. Kevin Kosar of the R Street Institute told the House Select Committee on the Modernization of Congress that total staff between the two chambers peaked at 15,321 in 1991 and fell nearly 19 percent to 12,436 in 2015, that personal staff fell from a 1983 peak of 7,606 to 6,030, and that House committee staff hit 2,321 in 1991 and fell about 50 percent to 1,164 by 2015. Committees are where oversight actually happens, and committees took the deepest cut.

One bill would flip the emergency default outright. H.R. 10132, introduced in the House on August 20, 2026, by Representatives Roy and Cohen, provides that a declaration of a national emergency shall remain in effect for a period of 30 calendar days and terminate when that period expires unless a joint resolution of approval is enacted into law. It was referred to the Committee on Transportation and Infrastructure, and to Foreign Affairs and Rules, which is where most such bills stay.

None of that requires a constitutional amendment, a new court, or a change in anyone’s reading of Article II. It requires the branch with the longest list of powers to use them, which is a political choice made new every session, not a legal problem waiting on a judge.

Justice Jackson saw the shape of it in 1952, in the same opinion everyone now cites for the three boxes. Where the Constitution’s distribution of authority is uncertain, he wrote, “congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility.”