Preserving the Constitution's Separation of Powers

In the aftermath of the American Revolution, the nation’s founders were justifiably concerned that a new government’s power could become concentrated in the hands of a few or even a single man—a new monarch. In that event, the cause of individual liberty, for which so many had fought and died, would quickly fade. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny,” James Madison, the “Father of the Constitution,” warned.

With that fear in mind, the founders divided the government’s power between three coequal branches: legislative (Congress), executive (headed by the president), and judicial (Courts). Even Alexander Hamilton, a fierce advocate of an “energetic” executive branch, argued that a “partition between the various branches of power” was necessary for “good government.” Hamilton was chiefly concerned that the legislative branch, as elected “representatives of the people,” would dominate the other two branches. But his concern proved to be misplaced. Throughout the modern era, the executive branch has posed a much greater threat to the separation of powers. Indeed, writing at some remove in 1835, Alexis de Tocqueville explained in Democracy in America that the real “purpose” of the separation of powers was “to preclude the exercise of arbitrary power” and, crucially, “to save the people from autocracy.”

The expansion of the executive branch’s power at the expense of Congress is not a new phenomenon. It did not begin on Jan. 20, 2025. Although the Constitution grants Congress “all legislative powers”—including to collect taxes and declare wars—there has been a steady decline in the exercise of congressional authority in recent years, along with a broad expansion of the power of the executive.

President Donald Trump’s second administration has capitalized on this longer-term trend to enlarge the powers of the presidency in sweeping ways, both by reimagining the powers of the executive branch and maximizing the scope and supremacy of the president’s authority within the executive branch. The administration’s threat to the separation of powers is two-fold. First, the president has trampled on the Article I powers of Congress by issuing executive orders that clearly infringe on the legislative branch’s authority. For example, Trump unilaterally imposed tariffs on foreign nations even though the power to levy tariffs clearly resides with Congress. Second, the president has expanded the executive branch’s power under a governing philosophy known as the “unitary executive theory,” which holds that all the power of the executive branch is concentrated solely in the hands of the president. Under this once fringe conservative legal theory, the president alone has power over independent regulatory agencies established and funded by Congress. In his second administration, Trump has attempted to exert unilateral control over these agencies, firing key employees whom he perceives as insufficiently loyal and even attempting to outright shutter them. Concurrently, Trump and his subordinates regularly hurl verbal and procedural attacks at the judges who rule against the executive branch. These rhetorical barbs lead to real physical threats and also undermine the legitimacy of the judicial branch in the eyes of the public.

The Constitution’s separation of powers is vital to matters big and small in how the American government functions. A core part of the pro-democracy coalition’s work this past year has been to defend this foundational element of our democracy. A powerful legal resistance has emerged—including Democracy Defenders Fund (DDF) and others in the pro-democracy coalition—to challenge the administration’s actions on the basis that they violate this core constitutional principle. Such challenges serve as important checks on executive overreach.

The separation of powers is central to issues affecting millions of lives around the world, from how the U.S. government provides foreign humanitarian aid, to the imposition of international tariffs (which directly impact costs for everyday Americans), to the ability of the government to protect consumers from fraud, to the functioning of independent regulatory agencies that serve vital functions in the U.S. economy. We cannot assess the full scope of ways in which the administration has run afoul of the separation of powers in just its first year, but below we highlight some of the notable ways in which the administration’s violation of this core constitutional principle has been challenged in the courts.

Limiting the Harm Done by DOGE

Early on in his administration, Trump appointed Elon Musk as the head of the so-called Department of Government Efficiency (DOGE). Musk’s appointment was challenged in the courts on multiple grounds, including that it violated the separation of powers, as Trump had granted Musk, an unelected official, with vast executive power. Musk and his lieutenants used this power to disrupt and damage congressionally-founded agencies. Eventually, Musk fled the government, failing to deliver on his promised cuts to the federal budget. According to an analysis by The New York Times, not only did Musk fail to cut expenditures by $1 trillion, as he claimed he would, federal spending actually increased during his tenure.

Still, DOGE and others in the administration wreaked havoc on the government and lives around the world. DDF and its partners won a preliminary injunction that initially blocked DOGE’s dismantling of USAID, a congressionally founded humanitarian agency that delivered life-saving benefits to millions. However, the administration pushed forward with its plans, effectively shuttering USAID. One estimate suggests that more than 700,000 people died as result of USAID’s operations being cut off —a figure illustrating the horrors that can be unleashed by unchecked executive power.

Challenging Trump’s Unilateral—and Costly—Tariffs

On April 2, 2025, Trump claimed unprecedented authority to impose tariffs worldwide—a constitutional power expressly vested in Congress. He sought to get around Congress’s clear powers by invoking the International Emergency Economic Powers Act (IEEPA), something no other president has done. That law provides a narrow exception for the president to impose international tariffs in the case of an economic emergency. Trump declared a so-called “national emergency” on the basis of mere trade deficits with countries around the world, claiming they were the result of unfair economic policies that exploit American companies.

Trump’s tariffs have greatly exacerbated economic uncertainty and contributed to the rising costs paid by Americans. And he had no constitutional power to impose them. By simply declaring that these tariffs would be charged on imported goods, Trump sought to usurp Congress’s constitutional power over import tariffs. Multiple lawsuits challenged Trump’s unconstitutional power grab, and the matter will be decided by the Supreme Court this term.

Preventing the Administration from Closing the Consumer Financial Protection Bureau (CFPB)

Established by Congress in the wake of one of the worst economic crises in American history—the subprime mortgage crisis of 2007-2008—the CFPB’s mission is to “protect families from unfair, deceptive, and abusive financial practices.” The CFPB was founded, in part, to centralize government regulatory oversight over potentially risky and fraudulent financial products. Trump appointed Russell Vought, an adherent of the “unitary executive theory,” to serve as the CFPB’s acting director. Within the first months of the administration, Vought sought to shutter the bureau by “firing all probationary and term-limited employees without cause, cutting off funding, terminating contracts, closing all of the offices, and implementing a reduction in force (‘RIF’) that would cover everyone else.”

Vought’s attempt to close the CFPB was quickly challenged in the courts, with plaintiffs successfully preventing him from doing so. A U.S. District Court found that Vought and the administration had sought “to dismantle and disable the agency entirely…in complete disregard for the decision” by Congress to establish it in the first place—that is, a clear violation of Article I of the Constitution. However, the courts have not entirely prevented Vought from effectively neutering the CFPB’s functions. According to Public Citizen, one of the litigants that has sued to block Vought’s actions, the Trump administration had effectively “thwarted” 45 of the CFPB’s “investigations and cases,” or “nearly every case about which public information is available,” by the end of March 2025. In December 2025, a U.S. District Court issued an order preventing Vought and the administration from cutting off the CFPB’s funding entirely.

Preserving Expert Independence at the Federal Trade Commission (FTC) and the Federal Reserve Board

The FTC was established to protect consumers from anticompetitive business practices by the Federal Trade Commission Act, which President Woodrow Wilson signed into law on Sept. 26, 1914. Since then, as stipulated in the FTC Act, the commission is governed by five commissioners, with no more than three of them coming from one of the two major political parties. The commissioners serve a seven-year term and are appointed by the president, with the Senate voting on their confirmation.

On Mar. 18, 2025, Trump fired the two Democratic commissioners serving on the board: Rebecca Kelly Slaughter and Alvaro Bedoya. Slaughter has sued the administration to retain her post and, in July 2025, a district court enjoined the administration from removing her. The Supreme Court agreed to hear the case, setting up another constitutional battle in the country’s highest court. However, the Court has also blocked (at least temporarily) injunctions from the lower courts that prohibited the Trump administration from firing the board members of other independent regulatory agencies, such as the Consumer Product Safety Commission, the Merit Systems Protection Board and the National Labor Relations Board.

In Slaughter’s case, a key issue is the FTC Act’s limitations on the president’s ability to remove board members and whether those limitations are consistent with the Constitution’s separation of powers. The text of the FTC Act plainly states that the president may remove board members “for inefficiency, neglect of duty, or malfeasance in office.” Trump’s termination letter to Bedoya and Slaughter did not mention these statutorily permissible reasons for dismissal. Instead, it simply read: “Your continued service on the FTC is inconsistent with my Administration’s priorities.” Trump argues that restrictions on his ability to terminate board members violate the separation of powers because such restrictions interfere with his ability to oversee the executive branch. Slaughter argues the opposite—namely, that these “for-cause” removal protections are consistent with the separation of powers, which enables bodies such as the FTC to operate as independent expert agencies that the president does not solely control.

The same core issue is at stake in the case involving Trump’s attempt to fire Lisa Cook, a member of the Federal Reserve Board of Governors. The Federal Reserve is the Central Bank of the United States. It was established by the Federal Reserve Act of 1913, which was passed by the Senate and then signed into law by President Woodrow Wilson on Dec. 23 of that year. In August 2025, Trump levied specious claims of mortgage fraud at Cook in an attempt to justify her firing.

Democracy Defenders Fund and Lowell & Associates filed suit on Cook’s behalf, seeking to block Trump’s dismissal. And on Sept. 9, 2025, U.S. District Judge Jia M. Cobb issued a preliminary injunction blocking Trump’s move. The judge found that the Trump administration likely “violated the Federal Reserve Act because her purported removal did not comply with the statute’s ‘for cause’ requirement.” Judge Cobb added that this “for cause” provision is “limited to grounds concerning a Governor’s behavior in office and whether they have been faithfully and effectively executing their statutory duties.” The allegations of mortgage fraud levied by Trump predated Cook’s time as a governor.

Judge Cobb’s ruling emphasized the importance of the Federal Reserve Board’s independence from political interference. “Sound monetary policy often involves making short-term sacrifices for the long-term good of the economy,” the judge wrote. “Congress therefore designed the Federal Reserve and the Board of Governors to possess characteristics that reflect their insulation from other parts of the federal government, in particular with respect to the Board’s monetary policy decisions.”

Judge Cobb cited a law review article authored by Justice Brett Kavanaugh prior to his tenure on the Supreme Court. Kavanaugh allowed that the Federal Reserve Board’s independence may be necessary. “To be sure, in some situations it may be worthwhile to insulate particular agencies from direct presidential oversight or control—the Federal Reserve Board may be one example, due to its power to directly affect the short-term functioning of the U.S. economy by setting interest rates and adjusting the money supply,” Kavanaugh wrote.

Kavanaugh will have the opportunity to weigh in on the Federal Reserve Board’s independence in the coming weeks, as the Supreme Court is scheduled to hear oral arguments in Cook’s case. As reported by SCOTUSblog, Kavanaugh already raised the issue during oral arguments in Slaughter’s case. Kavanaugh explained that he shares Slaughter’s “concerns” that the Trump administration’s position could “undermine the independence of the Federal Reserve.”

The Separation of Powers is Crucial for Constitutional Governance

More recently, Democracy Defenders Action and partners filed suit on behalf of Congresswoman Joyce Beatty (D-OH) to block Trump’s unconstitutional renaming of the John F. Kennedy Center for the Performing Arts. The Kennedy Center was first established as the National Cultural Center via bipartisan legislation signed into law by President Dwight D. Eisenhower in 1958. After President Kennedy’s assassination, it was “designated as a living memorial” to the fallen president “by an Act of Congress signed into law by President Lyndon B. Johnson” in 1964. Congresswoman Beatty’s suit challenges Trump’s desecration of this American memorial on the basis that it violates the separation of powers, as only Congress has the power to rename it.

The Trump administration has repeatedly attempted to undermine the Constitution’s separation of powers as demonstrated through the examples above. These examples are not intended to be comprehensive. There are many more cases involving this core part of America’s founding. But even this small sample shows how the separation of powers is not merely an abstract constitutional idea. It is crucial for the American government to function—and for the American people to retain their rights.