Anna Conley (University of Montana – Alexander Blewett III School of Law) has posted The Storm of a Century – Separation of Powers in the United States in 2025 on SSRN. Here is the abstract:
Separation of powers in the United States is experiencing an unprecedented stress test. The Framers’ design envisioned three co-equal branches whose “ambition” would defensively counteract encroachment by other branches. In 2025, however, this structure is destabilized by an overly aggressive Executive, a subservient Congress, and a fractionalized Judiciary. The Executive’s unprecedented encroachment on legislative power and disregard for institutional restraint is a result of: (1) the U.S. Supreme Court’s (“the Court”) adherence to the unitary executive theory, under which the President has unfettered control over the entire executive branch, (2) Congress’ unwillingness to check the Executive, and (3) the Court’s use of its place atop the judicial hierarchy to stymie lower courts’ attempts to check the Executive. When neither branch is willing or able to check the Executive, separation of powers disintegrates.
The Court’s adherence to the unitary executive theory resulted in its grant of expansive executive criminal immunity, allowing actions such as abuse of the pardon power and political prosecutions to go unchecked. The Court’s adherence to the unitary executive theory has also resulted in presidential power to remove nearly all executive officials without adherence to statutory protections. These expansions of executive power by the Court simultaneously strip Congress of power. Congress is likewise unwilling to check the Executive, illustrated by legislative acquiescence to the Executive’s refusal to enforce the TikTok Act. Congress’ subservience to the Executive has also allowed actions such as impoundment of appropriated funds and extrajudicial killing of suspected drug smugglers to go unchecked.
While lower federal courts have tried to check the Executive, the Court has largely blunted these efforts by staying injunctions enjoining executive action, limiting lower courts’ ability to issue nationwide injunctions, and directing lower courts to adhere to its short, cryptic stay orders rooted in the unitary executive theory. The result of both branches’ inability or unwillingness to check the Executive has created the storm of a century disfiguring the U.S. Constitution’s separation of powers design.