CONCLUSION: FEDERALISM AND THE SEPARATION OF POWERS—COLLECTIVE ACTION OR STALEMATE?

As asserted by the institution principle, institutions are designed to solve collective action problems. The solutions, however, can take many different forms. The framers believed that agenda, decision, and veto powers should be dispersed among many different federal institutions. And because the 13 existing states already possessed significant autonomy when the Constitution was drafted—and history matters—the framers had little choice but to relinquish considerable agenda, decision, and veto powers to them as well. The result was our federal system of separated powers.

Critics of the American constitutional framework have often pointed to this dispersion of governmental power as a source of weakness and incoherence in the United States’ policy-making processes. Because of federalism, the United States’ national government is often unable to accomplish what might be a matter of course in most other nations. As we saw in United States v. Lopez, for example, the Supreme Court invalidated a federal statute prohibiting the possession of firearms near schools on the grounds that it was an unconstitutional encroachment on the sovereignty of the states. In a country with a unitary system of government, this statute would not face such a hurdle.

Over the course of American history, as we have seen, the power of the states has waned relative to that of the national government. Nevertheless, the states still matter, and under the terms of “new federalism,” the states can exert a good deal of power over nominally federal programs. Still, the United States began as a nation of semi-sovereign states and is now closer to being a unitary republic.

As for the separation of powers, the policy principle tells us that political outcomes are the products of individual preferences and institutional procedures. Because of the separation of powers, an institutional procedure, Congress is often stymied by the president—or the president by Congress—in its efforts to develop and implement policies. The president can veto congressional action; Congress can, by legislation, limit the powers of the executive. In 2011, for example, the newly elected Republican House of Representatives promised to repeal President Obama’s recently enacted health care program, the Affordable Care Act (ACA). The Senate, still controlled by Democrats, disagreed, and the president promised to veto any bill that threatened what he viewed as the major achievement of his first term in office. In the meantime, legal challenges to the new law eventually led to a Supreme Court decision upholding the ACA’s main provisions. The dispersion of power among different institutions of government ensures that collective action will be difficult, though not impossible.

At times, however, a stalemate between Congress and the president may become so severe that the government is paralyzed. In their continued fight against the ACA, in 2013 House Republicans refused to allow a vote on any continuing resolution (CR) to extend the government’s spending authority that contained funding for the ACA. Senate Democrats and the president said they would not accept a CR that did not provide such funding. Without a CR, much of the government’s spending authority lapsed, such that most federal agencies had to close in a “government shutdown.” After a tense 16 days, Republicans and Democrats agreed to a spending bill and a temporary new debt ceiling.

The political importance of the separation of powers became even more clear after the 2018 elections gave Democrats control of the House of Representatives. Almost immediately, congressional investigators looked into every nook and cranny of the Trump administration and its policies. Many Democrats hoped to find evidence that would lead to the president’s impeachment. The president, for his part, made no secret of his disdain for Congress and its leaders, often referring to House Speaker Nancy Pelosi as “Nervous Nancy,” and tweeting that she was a “nasty, vindictive, horrible person.”

Thus, the separation of powers has real political consequences. The framers, though, did not want to make collective action too easy. They thought it was important to provide checks and balances that would protect the nation from the tyrannical actions of a small number of leaders, as well as from “majority tyranny,” or precipitous actions on the part of larger groups. The framers believed that well-constructed institutions should diminish the likelihood of inappropriate and unwise collective action, even at the cost of an occasional stalemate. In recent years, the U.S. government has often been criticized more for what it has done, especially in regard to foreign military operations, than for what it has not done. Many Americans believe that Congress should have done more to thwart presidential war policies and hope that the judiciary will do more to delimit presidential war powers in the future. The framers likely would have understood this desire to check the executive branch. Stalemate is not always the worst collective outcome.