Separation of Powers

Separation of Powers

The framers of the US Constitution established three arms of governments that were meant to promote democracy and protect freedom by ensuring that none of the three became too powerful. The framers had witnessed the tyranny in many of the European countries of the time that evolved out of concentration of power in one individual or institution. To prevent a similar fate in the USA, power was distributed among three arms of government so that they provided checks and balances to each other. The three arms of governments must cooperate with each other since none can fulfill its constitutional mandate without the others’ cooperation.

The system of checks and balances means that one arm can disrupt the actions of the other one. This happens so often, especially when different political parties hold the legislative arm and the executive arm, as in the present scenario when the Republicans control Congress and the Democrats control the White House. Collision between either of the arms and the judiciary happens often as well. This paper examines two cases in the past year when one branch has stopped the actions of the other branch. The paper will use the Keystone XL Pipeline Bill that Congress passed but the White House vetoed, and the Presidential Executive Order on immigration that President Obama gave but the Courts blocked its execution.

The Keystone XL Pipeline is a proposed crude oil pipeline meant to carry oil from Alberta in Canada to the refineries on the US Gulf Coast (The Economist). The pipeline would cross the Canada-US border through Montana, before heading southwards to South Dakota, Nebraska, Oklahoma, and terminating in Texas (Associated Press). The history of the pipeline dates back to September 19, 2008 when TransCanada Corporation applied for a presidential permit for the construction of the Keystone XL pipeline. The permit was necessary since the pipeline would cross an international border, subjecting it to an evaluation by the State Department to determine whether it was in the national interest (Lederman).

On October 15, 2010 while the permit was still under review, the then Secretary of State Hillary Clinton alluded that the department would likely approve the project (Associated Press). She argued that the USA would depend either on dirty oil from the Gulf or on dirty oil from Canada. The Republicans supported the project, strongly arguing that it would create thousands of jobs and improve the economy tremendously. This galvanized opposition towards the project from environmentalists geared towards stopping the project because of its likely contribution to the climate change. Nevertheless, the State Department issued a positive environmental impact report, stating that the project would not significantly affect the environment along its proposed route (Lederman).

As the 2012 elections drew near end amid political pressure, President Obama postponed making a decision on the pipeline to after his reelection (Lederman). On December 23, 2011, Congress passed a legislation, requiring President Obama to approve the project within sixty days or else determine that it was not in the national interest. President Obama turned down the application, but gave TransCanada an opportunity to re-apply, which the company did in May 2012 (Williamson). The State Department environmental report in March 2013 did not object the project, stating that the other options available to bring Canadian oil to the Gulf Coast refineries posed a greater challenge to climatic changes than the Keystone XL pipeline (Associated Press).

As environmentalist piled pressure on the Obama administration, the President declared that he would only approve the pipeline if it did not exacerbate carbon pollution. The President had determined fighting climatic change a top priority for his government in his last term in office (Lederman). The State Department final environmental impact report in January 2014 raised no objection to the project.

As the Obama administration was hesitant about the project, Congress passed a bill to allow the project to proceed. The Keystone XL Pipeline Bill was passed on February 11, 2015 by the Senate after Congress had passed a similar bill in January 2015. The vote passed Congress by a margin of 272-152 where most congressional representatives voted along their party lines (The Economist). However, 29 Democrats voted with the Republicans to approve the project while only one Republican voted against the bill. The Republicans argued that the State Department environmental assessment report had given the project a clean bill of health. They supported the project based on the number of jobs it would create although the figures were highly disputed with some indicating more than 40,000 jobs and other estimates less than 2,000 (The Economist).

The opponents of Keystone XL project accused the Republicans of playing along with the oil companies that financed their political activities. They argued that the Republicans’ move was selfish and it meant to appease the oil companies. The supporters of the project argued that 85% of Americans supported the project as well as majority in both houses. They saw the executive as having fallen victim to machinations by climate activists and anarchists who opposed the project to gain approval in the eyes of the public and to appease their donors (Williamson).

President Obama exercised his veto power and blocked the legislation on February 24, 2015. His argument was that Congress had usurped powers and responsibilities of the executive branch (Williamson). The responsibility of approving the pipeline or not lay with the executive branch through the State department and not Congress. Without the requisite numbers to override the president’s veto in both houses, Congress’ move came to naught. This represents a good example where one branch of government, in this case the Executive, disrupts the action of the other branch that is Congress. The President prevailed over Congress. The Republican Party and other supporters of the project felt humiliated by the President. The environmentalists could celebrate their victory over a project they had deemed as dangerous to the environment (The Economist).

As for me, I would support the project to go on as requested by Congress because the environmental assessment report had given the project the green light. Furthermore, climate change is a controversial topic that has even caused divisions among scientists. No tangible results had showed that the project would be detrimental. To reject a project merely because it might contribute to climate changes when its alternatives would do the same or worse simply does not add up. The USA would continue to import oil from the Gulf countries and Africa, while oil from a friendly neighbor Canada would be shipped to Asia and, more so, to China.

The USA is often described as a country of immigrants who have been arriving year after year for the last 400 years. While the majority of immigrants have arrived legally, millions stay in the country illegally. The number of illegal immigrants increased for most of the post-WWII period. The numbers reached a high of 12 million by 2007 (Shear and Preston). As the number of illegal immigrants in the country increased, politics around the topic had also heated up. In 1986, Congress passed the Immigration Reform and Control Act that granted amnesty to 2.9 million illegal immigrants (Shear and Preston). It targeted those who had arrived in the USA before 1982 and had stayed continuously since. The law also promised strict border controls and penalties for employers who hired illegal immigrants knowingly.

Perhaps, taking a cue from the events of the 1980s, President Obama promised a complete overhaul of the immigration laws in the USA. He envisioned pushing through Congress laws that would grant lawful residency to illegal immigrants who had arrived in the country as minors (Ehrenfreund). Congress had failed to enact comprehensive immigration laws from 2005 to 2007. In 2010, Congress declined to enact into law the DREAM Act that was meant to grant lawful residency to illegal immigrants who had arrived in the USA as minors (Ehrenfreund). Frustrated with the failure of Congress to pass the law, President Obama issued an executive order in June 2012 that instituted the Deferred Action for Childhood Arrivals program abbreviated as DACA. Under DACA, illegal immigrants who were brought to the USA as children could apply for a deferral of deportation and thereby legalize their presence in the USA (Brennan). The young immigrants referred to those whose age was thirty years or less.

In 2013, Congress again failed to pass the comprehensive immigration reform bill that had the backing of the President (Ehrenfreund). The act would have legalized approximately 11 million illegal immigrants. Frustrated over the failure of Congress to pass immigration reform laws, President Obama decided to take unilateral action on the subject by issuing an executive order. The order given in November 2014 would offer temporary legal status to approximately 4 million illegal immigrants (Doyle and Ordonez). The executive order would grant legal status to the parents of the US citizens residing in the country illegally and permanent residents who have lived continuously in the USA for the last five years. This would offer reprieve from the threat of deportation indefinitely. The beneficiaries of the program were supposed to reapply after every three years for an indefinite period. The order would also have expanded DACA program beneficiaries to those above 30 years and some recent arrivals (Doyle and Ordonez).

The Republicans protested that the president was overstepping his constitutional mandate by taking function that belonged to Congress. They argued that the president wanted to bypass Congress, a move that was not only illegal but also unconstitutional. They pointed to the President’s previous comments where he had stated that he believed he did not have the mandate to act unilaterally (Ehrenfreund). Congress threatened that it would go to court over the move. Majority of the States also protested, arguing that the action would put a heavy financial burden on them. Money would be needed to educate the illegal immigrants whose residency would be regularized, and to offer healthcare facilities and law enforcement (Shear and Preston).

Twenty-six states led by Texas went to court over the move. In February 2015, U.S District Judge Andrew Hanen ruled in favor of the 26 states by granting a preliminary injunction to the order’s implementation (Shear and Preston). The ruling temporarily blocked the executive from implementing the policies outlined in the executive order. The program that protected young immigrants was to take effect on February 18, 2015, while the one protecting parents of the US-born children was to go into effect on May 19, 2015. However, both could not take effect following the injunction (Ehrenfreund).

The administration appealed against the injunction at a federal appeals court based in New Orleans. The three-judge appeals court in its ruling in November 2015 ruled 2-1 against the Obama administration staying the injunction orders given by Judge Hanen in February (Brennan). Judge Jerry Smith writing for the majority ruled that the state of Texas had proved that it was in a strong legal position to contest the program in court since it would incur new costs for issuing the illegal immigrants with driver’s licenses (Shear and Preston).

The case demonstrates a situation where the actions of the executive branch are disrupted by the legislative branch. In this case, I would side with the courts since the constitutional responsibility of making laws lies with Congress. The executive should not use executive orders to bypass Congress. It should limit itself to implementing laws passed by Congress. It should cooperate with Congress in reaching a compromise on issues of national importance. If executive orders are used to circumvent Congress, then it would lose its relevance, and the executive would turn into the tyranny the framers of the Constitution had wanted to avoid through sharing of powers.

The Keystone XL Project Act and the Illegal Immigrants’ executive order clearly illustrate the workings of the system of checks and balances in the American political system. Another arm of government can disrupt the actions of one branch of government. The framers of the Constitution designed it to encourage cooperation and compromise among the three branches of government. The system of checks and balances also ensures that none of the branches becomes tyrannical. Exercising his executive authority, President Obama vetoed the Keystone XL Pct passed by both houses of Congress. Since none of the houses could marshal the two-thirds majority needed to override a presidential veto, the act came to naught. The courts blocked the President’s executive order on illegal immigrants meaning the executive could not implement the order. It shows that each branch has limitations, and one branch must consult the other and seek a compromise for them to function smoothly.