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Abstract: The US allocation of powers creates a web of interlocking checks and balances that work reasonably well in most instances but leave room for some significant conflicts. Structural issues within the federal government consist of both legitimate claims of autonomy by each of the three branches - legislative, executive, and judicial - and the checks imposed by other branches. Those issues obviously require attention to the highly contentious claims of executive autonomy; less visible but still important are troublesome issues of state power in a federal system. The role of judicial review in the US system places the Supreme Court in a position of referee over disputes of power, so this article necessarily relies heavily on the case law of the Court.
Keywords: US Constitution; executive autonomy; immigration; state-federal powers; individual rights; foreign affairs
The principle of separation of powers within the US government pertains, in reality, to a complex web of interlocking checks and balances. These checks and balances work reasonably well in most instances but leave room for some significant conflicts. What is not often perceived is that these structural devices contribute significantly to the protection of individual liberties.1 The role of the unelected judiciary as a check on the "political" branches is particularly noteworthy even though extreme judicial deference to Congress and executive in foreign affairs has been a dominant theme after 9/11.
The 2016 American shift towards autocracy, while in line with a worldwide trend, surprised almost all observers. Ironically, it was facilitated in part by rhetoric about abuses of the prior administration, primarily with regard to executive edicts on immigration. The reality, however, is that a steady accretion of executive power has been underway for decades,2 fuelled by the wars of the 20th century, the Great Depression, the Cold War, and various incidents of the post-Soviet era.3 It remains to be seen whether earlier judicial responses to executive power have cemented understandings sufficient to form a stable Rule of Law.
In most instances, challenged executive action has come after Congress refused to pass a similar edict as a matter of legislation. The argument for the President obviously has been "if Congress won't do what's right, then I will". The argument on the other side, just as obviously, is...