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Three Branches of Government: Role of the Legislative Branch

By Adam F. Packer

“Ambition must be made to counteract ambition,” said James Madison in Federalist 51, warning a young America that checks and balances are necessary in a republic.

Madison further instructs that of the three branches of republican government - executive, legislative, and judicial - the legislative branch must be the most powerful. This instruction sounds odd to those of us who paid attention to this year’s election, but it is important to remember, and critical to the founders’ design for a country free of tyranny.

Whether we preferred Clinton, Trump, or neither, the 2016 election for most of us focused heavily on the presidential race. This makes sense. The president represents the entire country and is newsworthy across the country. Let’s return to Madison’s warning: certainly anyone who takes the time and energy to mount a major-party run for president must have plenty of “ambition.”

The first question for Madison, and for us, is why should we resist that ambition?

Concentrating power in one office has its appeal. For example, “gridlock” would be a thing of the past! But Madison and the rest of the founders had learned a hard lesson in executive supremacy under King George. You will remember many of the abuses of power from history class: quartering of soldiers in private homes, limited legal rights, and most importantly taxation without representation.

With Madison’s urging and approval, we have a strong legislature to counteract the “ambition” of the president. No matter how ambitious a president may be, Congress alone has the power to tax, borrow, provide for defense and welfare, regulate commerce with foreign nations and the states, establish immigration and bankruptcy laws, protect intellectual property, create and regulate the armed forces, and declare war, among other powers.

It is not enough, said Madison, to just have a legislature to counteract the president’s ambition. As the most powerful branch of government, there is plenty of ambition in the legislative branch that itself needs to be checked.

Madison tells us that the legislature must separate its powers, again showing his well-founded fear of concentrating power. He suggests that there should be different methods of electing the two houses and different functions for them.

We have mostly lived up to Madison’s instructions for the Legislative branch, with one exception. Before the 17th Amendment, Senators were elected by state legislatures to represent the interests of the states. This different method of electing the Senate was designed not only to represent state interests in Washington, but also to keep the Senate and the House from becoming too similar in their “ambitions.” Whether justified or not, political pressure spoiled this check, and the 17th Amendment was easily ratified, placing election of senators in the hands of the people. This resulted in more democracy, but pushed us further from Madison’s ideal, providing much less separation of powers and arguably less of a role for the Legislative branch.

No discussion of the Legislative branch would be complete without acknowledging poor Congressional approval ratings. Perhaps this is in part because Congress has strayed from the purpose and structure that Madison recommended. Yes, Congress still makes laws and sets budgets, but it has watched countless actions by presidents of both parties erode its authority. A restoration of Congress’ original purpose and structure would reduce the chances of the Executive becoming too powerful and possibly tyrannical, and could even increase approval ratings.

Sources as diverse as prominent pastor Franklin Graham and The Nation called the 2016 election the most important of our time. It’s a statement sure to get attention and sell a few magazines, but I don’t think the founders would agree with that assessment. I think they would see the current state of the separation of powers and take the position that the most important election of our time is still to come.

The most important election of our time will be the one in which candidates for Congress from both parties pledge to do their part to restore the balance of powers as explained by Madison and as designed in the Constitution. Until then, the Executive will continue to increase its power and get all of the attention, which is exactly what the founders feared following their poor treatment by the King.

Adam F. Packer is an Indianapolis attorney and a volunteer for the Indiana Bar Foundation.

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