I hear it all the time, usually when someone is talking about separation of powers in the federal government: They say we have “three co-equal branches of government”. It’s heard so often that no one even questions the statement. This may be news for you, but while we do have three branches of government, they are not even close to equal.

Three Branches

Yes, we have three branches of the federal government, but the real question is: Are they equal? The first three articles of the Constitution create the legislative, executive, and judicial branches respectively. Article I, Section 8 lists 18 powers given specifically and only to Congress. Only Congress can:

  • Lay and collect taxes
  • Borrow Money
  • Coin Money
  • Establish Post Offices
  • Declare War
  • And 13 more

Also, in Article II Congress is given the power to determine the time when electors are chosen, when they will vote for President, and to determine what executive officers do not require confirmation by the Senate.

Article II, Section 2 lists the powers the President has. On his own the President:

  • Is Commander and Chief of the military
  • Can require the report of executive departments
  • Can grant reprieves and pardons
  • Can fill vacancies during Senate recess

But it also lists two other things the President has the power to do:

  • Make treaties, but only with the advise and consent of the Senate
  • Nominate Ambassadors, judges, and other public officers, but they can only be appointed by and with the advice and consent of the Senate

So two of the Presidents six enumerated powers he can only fully exercise with the advice and consent of the Senate, which is part of Congress.

Article III, Section 2 says the judicial branch can exercise “judicial power” over:

  • All cases rising from the Constitution, federal laws, and treaties
  • Cases affecting Ambassadors, other public officials, and maritime law.
  • Any case to which the United States is a party
  • Cases between states or citizens of different states

So the next obvious question should be: “What are judicial powers”? The 1828 Webster’s dictionary defines the judiciary as:

JUDI’CIARY, noun That branch of government which is concerned in the trial and determination of controversies between parties, and of criminal prosecutions; the system of courts of justice in a government.

So the only power the judicial branch has is to try controversies related to the Constitution, where the United States is a party or between states or citizens of different states.

Why do I focus on the 1828 dictionary? Because that is the language used during the writing and ratification of the Constitution. In other words, this is what our Founding Fathers meant by ‘judiciary’ when they wrote the Constitution.

Quantity vs. Quality

Sure, Congress has more powers, but it’s not just a question of quantity. ONLY Congress can declare war. ONLY Congress can collect taxes, borrow money, and pay debts. And ONLY Congress can remove someone from another branch of the federal government. Congress can remove a judge, the President or other officer in the executive branch, and even a member of the same house of Congress. A President CANNOT remove a member of Congress. No court can remove a member of Congress; ONLY Congress or the people can remove a member of Congress.

Why is this so important? What we’ve been told isn’t true, and because of that we expect the President to do things the office is not authorized or designed to do. We bow to the supreme Court not realizing they neither determine what the law is nor do they have the power to enforce their decisions. Because of this myth we’ve let Congress off the hook and let them get away with not doing their job. Even worse, because of this myth we have not done OUR jobs.

How often do you hear someone talk about a certain president’s budget or tax bill?  Presidents don’t determine taxes, neither do they determine spending. Congress does.  Presidents don’t appoint judges or cabinet members, they nominate them and then ask the Senate to appoint them.  Supreme Court decisions are often referred to as “settled law”, but the judicial branch neither makes nor determines law.  Their job is to look at the facts at hand and decide BASED on the Constitution and the law whose side is right.

By not checking the facts, we’ve forgotten what our rights are and the fact that government is there to protect our rights, not determine them. By expecting the federal government to check itself, we have let loose a monster while tying our hands behind our back so we cannot defend ourselves. This is why knowing the truth is so important. It is also why it is so important that we read and understand the Constitution for ourselves. Only then will we recognize when such errors are brought forward, and only then can we truly live free.

Author: Paul Engel

Paul Engel founded The Constitution Study in 2014 with the goal of helping everyday Americans read and understand their Constitution. Author, blogger, podcaster and speaker, Paul writes and podcasts at http://constitutionstudy.com. You can also find his books at http://amazon.com/author/paulengel

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