In your opinion, which of the three

branches of the US government has the

most power? Defend your answer.
This essay aims to defend the argument that the executive branch of the American government is
the most powerful branch. Firstly, I will outline the system of checks and balances existent within the
design of the constitution. I will then highlight how the power of the executive has ebbed and
flowed, gaining through the usurpation of power through agency led decision-making, and losing
through the growing limitations on access to the nation the media has placed on the presidency. I
will then highlight, as I will do with each branch, that while each branch has changed and evolved to
differing extents, the executive is still most powerful. I will show that while Congress managed to
expand its power historically through the corruption present within the multitude of committees of
the time, post 1970, Congress reformed out most of this expanded power, and so remains with
mostly the same power it began with. I will then highlight how the Judiciary has the ultimate right to
overrule both the Legislative and the Executive if it deems it unconstitutional, however I will also
exemplify the methods that the Executive has with which it can obsolete this power.

The three branches of American government are the legislative, the executive, and the judiciary.
They were specifically designed to stop one gaining more power than the other two. A system
known as checks and balances was created to enshrine in the constitution the ability of two
branches to hold the third to account and be held to account by the others. The president has the
ability to veto any law passed by congress if he refuses to sign it. He can also declare an executive
order to sign something into law. The legislative has the decides what is passed into law, and can
override a presidential veto with enough votes, as well as approving Presidential nominations. The
legislative can also impeach the president. The judiciary interprets whether passed law is
constitutional, and can strike down any law it deems unconstitutional, including executive orders.
The court is however appointed by the president, and so can be stacked in a more Conservative or
Liberal way. Judges can also be impeached by Congress.

The Executive branch has usurped more structural power than it was originally intended to have,
and thus is not kept in check or in proper balance by the other two branches. Macey writes that
“Due to certain structural advantages, executive branch agencies are better situated to respond
quickly and decisively to emergencies. As a result, they can expand their power base more readily
than the other branches of government.”

The structure in question is not so much an “advantage”, as Macey writes, but rather a lack of
disadvantages. The legislative is the most famous in its hinderances. The effect of special interest
groups such as lobbyists and Political Action Committees (PACS) is well documented, with Gray and
Lowery (1995) confirming that the higher density of special interest group is inversely proportional
to the quantity of bills introduced and made into law. The Judiciary, similarly, carries such
hinderances – judges must wait for the filing of a lawsuit, and then objectively follow the process of
the collection of evidence, the presentation of motions, and finally the trial itself, before they have
the ability to set out policy. The executive, however, can take independent action in the form of a
lawsuit, for example, as a result of a much more streamlined decision-making process in comparison
to Congress. Macey’s (2006) work utilizes the example of the civil litigation (known as enforcement
actions) available to the Securities and Exchange Commission (SEC), a timely example, given the
probes conducted into the Tesla car company and its founder, Elon Musk. While the former is still
ongoing, the latter resulted in the replacement of Musk as chairman of Tesla over securities fraud
allegations. Macey writes further that “executive action, particularly agency action, determines the
course of law”. With the advent of the Trump administration, I would argue that the power of
executive action is underestimated here. The most controversial order was Executive Order 13769,
often termed the ‘Muslim Ban’. While not based on religion, as its name would have one believe,
this order quickly applied many sweeping reforms to the ability of entrants from specific middle
eastern nations and refugees to come to the UK. To date, president Trump has signed 86 separate
executive orders into law. President Obama signed approximately 280 in 8 years.

Macey’s arguments unquestionably carry validity, but if the expansion of executive power has come
off the back of the erosion of executive power, then it only stands to reason that the development of
agency-led legislating only returns the executive to the power it originally had through the president.
This presidential power, argues Mallaby (2000), “has been eroded dangerously, to the point where
even a skilled president would be hard-pressed to push treaties through the Senate.”

There has been an historic decline in the presidential side of executive power. Whereas in the
heyday era of Theodore Roosevelt addressing the nation on the radio, or JFK winning hearts and
minds over the television saw technological advancement as a way to speak directly to the masses,
since the 1980s, the same technological advancements, have become a method of undermining the
president. Television networks display punditry as opposed to presidential policy. As Mallaby writes,
since Reagan “became the first president to be refused a request to have a speech televised…the
[president] has been reduced to brief sound bites…and even those are diminishing.” Even Obama
had a request to televise a speech to the nation in 2014 regarding immigration.

The above argument, however, seems to have been flipped on its head by the Trump administration.
In a departure from previous presidents, Trump has demonstrably favoured communication with the
nation through social media networks like Twitter, with announcements of cabinet departures,
specifically that of Rex Tillerson, being announced on Twitter three hours before the then secretary
of state was spoken to directly (Borger, 2018; Trump 2018). Even in regard to the televising of
speeches, Trump was given priority where Obama was not in January 2019, being allowed the
opportunity to speak on all major networks regarding border security and the government shutdown
in place at the time. This was however followed immediately with a response from opposition
leaders to avoid allegations of media bias.

Ultimately this shows that, while it would have been difficult to argue the executive was the most
powerful branch of government pre-Trump, the power that Mallaby argues the president has lost
does not seem to apply to Trump, and thus combined with the extension of agency led power, the
Executive must be seen as the most powerful branch of government.

Congress has expanded its power historically, through what has been termed ‘committee
government’, however after congressional reform beginning in the 1960s, Congress has been limited
to a much smaller expansion than what the executive has managed into the 21st century. President
Wilson described turn of the century American democracy as “government by standing committee”
(Wilson, 1885). Deering and Smith, however, argue that this term better encapsulates American
politics in the twenty years following the Second World War (Deering and Smith, 1997). This is due
to the fact that in this period, the Legislative Reorganization Act 19461 meant that the number of
standing committees was meaningfully lessened, the jurisdictions of many codified, appointed
entrenched staff, and most importantly, consolidated within were the Congressional powers of
oversight. These changes were applied loosely by the House and Senate, with Deering and Smith
writing that many “add[ed] additional temporary staff, creating numerous subcommittees, and
allowing aggressive committees to expand their jurisdictions on an incremental basis.” Thus, these
committees had much more information to hand than other members, and crucially the parties
themselves, so created much more independence for themselves.

Combining this alongside the “institutionalisation of certain norms (such as seniority, apprenticeship,
and reciprocity”, (Deering and Smith, 1997; Matthews, 1960; Asher, 1973), as well as the coalitions
formed especially by the Conservative, mostly Democrat, caucuses, often through the previously
mentioned seniority. Outliers were supressed, and thus a consistent stream of control of legislative
committees was ensured. Ultimately, these committees could decide on what legislation was passed
and put forward, and even what presidential vetoes should be overridden. Indeed, even in reform of
these powers, Congress gave itself a significant power over the executive, if unwittingly. The
Congressional Budget and Impoundment Control Act, 1974, “fixed a timetable for constructing a
budget for each fiscal year”. While initially aimed at shifting Congress from being a protector of the
federal budget, to being supported by it, this rule has also become useful in balancing out a
president whose policy is particularly objectionable to the house. This is because Congress can
refuse to fund presidential policy, and thus the president has to either concede defeat in that policy
area, or not sign the bill and shut down the government until a budget deal can be reached. This
occurred during the Obama administration in 2013 due to disputes over the funding of DACA,
however is currently happening at the time of writing under the Trump administration, due to the
objection of Democrats to providing funding to the border wall promised by President Trump. The
president does however have the right to call a state of emergency and overrule Congress, should he
choose. Thus, in this period, it can be argued that Congress was significantly more powerful than it is
in the present day, and even arguably more so than the other two branches of government, given its
retention of the congressional powers bestowed to it by the constitution.

However, the 1960s heralded strong and concentrated demands for meaningful reform, especially
from those whom had been marginalised by the seniority norms mentioned previously. From the
1960s to the 1990s, eleven separate bills aimed at congressional reform were introduced to the two
chambers. Of special note is the Legislative Reorganization Act 1970. This act originally made
recommendations in almost every single facet of congressional politics, bar the activities of political
parties, but ultimately was ground down a number of “procedural reforms” (Deering and Smith,
1997). While it did take 5 years to be ratified by the houses and executive, it effected a precedent
allowing the passing of future reforms. Other such reforms, such as those conducted by the Hansen
and Bolling committees, where committee chair elections and debate topics were made significantly
more accessible, as well as the ability for committee decisions to be affected once made being
significantly reduced. It must be mentioned that while these reforms did reduce committee power,
chamber leaders saw their power expanded.

Another reform of note is the Senate reforms of the Stevenson committee in 1977. While the House
had undergone significant reform, the Senate had not until this point. This committee acted as the
catalyst for not only smaller reforms, such as open mark-up sessions and secret ballots in electing

1
Deering and Smith note 8: “Sen. Robert W LaFollette of Wisconsin and Rep. Mike Monroney of Oklahoma
were co-chairs of the Joint Committee on the Organization of Congress that produced the Reorganization Act.”
committee chairs, but for much larger scale reforms, with most select and special committees being
removed, and many smaller committees being merged into larger jurisdictional ones.

These reforms ultimately stimulated a return to the intended function of Congress – a collaborative,
deliberative, and accessible method of legislating on behalf of the people. While undoubtedly a good
thing, and a valid attempt to remove some of the corruption that had plagued Congress historically,
it does mean that, apart from the ability to fight presidential policy with budget legislation, Congress
retains the same levels of power it was originally intended to have, and the expansions that first
caused Wilson to lament the “government by standing committee”, have been mostly removed.
Indeed, even the balancing of the president through budget legislation is not always a given, due to
the effect of public opinion.

Arguably, the only branch with a genuine claim to have more power currently than the Executive, is
the Judiciary. This is due to the fact that, bar restructuring the entire court, something that would
require a supermajority in both houses, something that has only been done once, the Judiciary,
specifically the Supreme Court, has the final say on all legislation and Executive action, due to their
power of Judicial Review.

In a controversial move, this power was actually bestowed upon the court by itself, in the landmark
case of Marbury vs. Madison. This case established the constitution as statute law, and not political
treatise, and thus allowed the court to enforce it, thus being able to strike down any law or action
that it deems unconstitutional. It has done so on many significant issues since passing this power,
including the removal of racial segregation laws, entrenching the right to abortion and the right to
religion of private enterprises. More importantly however, it has the ability to overrule presidential
legislation. This is best exemplified in the overruling of President Trump’s travel ban from selected
countries in 2018, though this was ultimately reinstated after a supreme court decision in the same
year.

That said, the President, and by extension, can still exercise power over the court. While they cannot
overrule a decision passed by the court, the have multiple powers to nullify said decisions. Paulsen
highlights these in his paper as being “Pardons and vetoes, nonexecution of Statues,
“Nonacquiesence” in precedent, [and] nonexecution of Judgements” (Paulsen, 1994).

Veto and Pardon powers are absolute in the presidency. The President can decide to pardon or
provide clemency to any convicted criminal in the USA. President Obama famously gave clemency to
Chelsea Manning in 2017, the ex US espionage operative that leaked US secrets to Wikileaks in 2010.
State governors also have this power, exemplified most recently by the pardoning of Cytoia Brown
by Tennessee governor Bill Haslam in 2018. The nonexecution of Statutes is similar to a veto or
pardon in that it simply consists of the President exercising the core of "the executive power"-the
direction and control of the execution of the laws.” (Paulson, 1994). This is covered under Marbury
in that the president occupies an interpretational role with regard to the law, and thus can decide he
does not want to follow a law. While this would arguably open up a president to impeachment,
there are multiple precedents for it. For example, Paulsen highlights that “No President has accepted
the 1973 War Powers Resolution as binding, on the ground that it unconstitutionally interferes with
the President's powers as Commander-in-Chief (Ibid; McGinnis, 1993). “Nonacquiescence” in
Precedent is defined by Paulsen as “executive branch refusal to execute a statute on constitutional
grounds previously rejected by the courts is simply one instance of executive branch
"nonacquiescence" in judicial precedent. (Paulsen, 1994). This is evidenced by the refusal of the
Social Security Administration to lower circuit ruling, but more importantly, evidences further the
power of the agency based decision-making referenced earlier, as it is not the President himself
refusing to follow legal precedent, but an executive agency, making the argument that, as part of the
executive, it is within their jurisdiction to interpret law. In regard to the nonexecution of
Judgements, referred to as the Merryman Power, goes even further to suggest that the Executive
does not even have to see judicial decisions as law if it requires the President to act, as he simply
cannot be forced to. This seems nonsensical, and would surely be a case for impeachment, but
basing oneself in the precedent of the Presidents ability to ignore Statute and Precedent, it stands to
reason that if the President is required to act, he cannot be forced to, and can simply refuse to
execute what is judged of him. This is exemplified in the Ex Parte Merryman case, borne out of the
Civil War, wherein the Judiciary ruled that the ability to suspend the writ of Habeas Corpus lay solely
with Congress, not the Executive, as had been done against the convicted Confederate general
Cadwalader. President Lincoln, supported by the army as Commander-in-Chief, ignored this decision,
and the general remained in custody, his original conviction standing.

Therefore, we can see that while the constitution retains certain checks and balances of the three
branches of government on each other, only the Executive has managed to expand its powers
beyond that of the others. I have shown how the agency led decision-making of the executive has
allowed it to expand its legislative powers. I have also shown how, while historically Congress was
the most powerful branch, in the present day, these powers have been mostly reformed out,
something which cannot be said of the Executive. I have also shown that, while the Judiciary does
carry the ultimate power to rule on the constitutionality of a law or action, there are many methods,
no matter how potentially impeachable they would be in the modern day, that can be employed to
obsolete or nullify the power of Judicial Review.
References

Asher, H (1973) “The Learning of Legislative Norms”. American Political Science Review 67: 499-513,
1973. https://www.cambridge.org/core/journals/american-political-science-review/article/the-
learning-of-legislativenorms/8B3A9D64BDAA5C0A160EB609EF5ADAB9

Borger J (2018) “Rex Tillerson: a rocky road with Trump that ended with a surprise firing”, The
Guardian, https://www.theguardian.com/us-news/2018/mar/13/rex-tillerson-fired-what-happened-
trump-secretary-state

Deering, C & Smith S (1997), “Committees in Congress”, CQ Press, Washington DC,

http://www.mit.edu/~17.261/smith&deering.pdf

Gray V & Lowery D (1995) “Interest Representation and Democratic Gridlock.” Legislative Studies
Quarterly, vol. 20, no. 4, pp. 531–552. JSTOR, JSTOR, www.jstor.org/stable/440192.

Macey J (2006) “Executive Branch Usurpation of Power: Corporations and Capital Markets.” The Yale
Law Journal, vol. 115, no. 9, pp. 2416–2444. JSTOR, JSTOR, www.jstor.org/stable/20455701.

Mallaby S (2000) “The Bullied Pulpit: A Weak Chief Executive Makes Worse Foreign Policy.” Foreign
Affairs, vol. 79, no. 1, pp. 2–8. JSTOR, JSTOR, www.jstor.org/stable/20049609.

Matthews D (1960) “U.S. Senators and Their World”, Vintage, New York,
https://journals.sagepub.com/doi/abs/10.1177/000271626133400119

McGinnis J (1993) “Constitutional Review by the Executive in Foreign Affairs and War Powers: A
Consequence of Rational Choice in the Separation of Powers”, 56 L. & CONTEMP. PROBS. 293, 315-
22, https://scholarship.law.duke.edu/lcp/vol56/iss4/13/

Paulsen M (1994) “The Most Dangerous Branch: Executive Power to Say What the Law is”, The
Georgetown Law Journal 83(2): 217-346,
https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/glj83&id=245&men_ta
b=srchresults

Trump D (2018) “Mike Pompeo, Director of the CIA, will become our new Secretary of State. He will
do a fantastic job! Thank you to Rex Tillerson for his service! Gina Haspel will become the new
Director of the CIA, and the first woman so chosen. Congratulations to all!”, Twitter,
https://twitter.com/realDonaldTrump/status/973540316656623616

Wilson W (1885) “Congressional Government: A Study in American Politics”, Houghton Mifflin,

Boston, https://www.gutenberg.org/files/35861/35861-h/35861-h.htm