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Separation of powers

Sunday 7th of December 2025

Separation of powers Beyond the majority’s legal errors, its ruling reveals a far more fundamental problem: This Court’s repeated failure to appreciate that its decisions can threaten the separation of powers. Here, that threat comes from the Court’s mistaken conclusion that Congress cannot assign a certain public-rights matter for initial adjudication to the Executive because it must come only to the Judiciary. The majority today upends longstanding precedent and the established practice of its coequal partners in our tripartite system of government. Sonia Sotomayor, disSent in SEC v Jarkesy © 2024 Kwiple.com
Separation of powers Given America's separation of powers, the Tea Party needs to be only a majority of the majority of one half of one branch of government to have a pretty good shot at ensuring nothing significant can move in Washington, D.C. The only threshold that matters is to be a majority of the minority party in the Senate (where forty votes can block almost all legislation), and to remain the largest and most powerful faction in the House. Even if Republicans lost control of the House, the Tea Party could still get by on the minority veto in the Senate. Edward Luce, Time to Start Thinking © 2017 Kwiple.com
Separation of powers In a sense, America benefits from a separation of powers that is deeper than the one codified by its founders. It is that between politics and culture; between formal and informal clout. One side has advantages in politics “proper”. The other gets to set the atmosphere in which it takes place. That this is an ill-gotten kind of peace does not mean there are better ones available. Janan Ganesh, Financial Times, July 13, 2021 © 2021 Kwiple.com
Separation of powers Is there a person in America who thinks Missouri is here because it is worried about MOHELA’s loss of loan-servicing fees? I would like to meet him. Missouri is here because it thinks the Secretary’s loan cancellation plan makes for terrible, inequitable, wasteful policy. And so too for Arkansas, Iowa, Kansas, Nebraska, and South Carolina. And maybe all of them are right. But that question is not what this Court sits to decide. That question is “more appropriately addressed in the representative branches,” and by the broader public.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Separation of powers [T]he majority resorts, as is becoming the norm, to its so-called major-questions doctrine. And the majority again reveals that doctrine for what it is — a way for this Court to negate broad delegations Congress has approved, because they will have significant regulatory impacts. Thus the Court once again substitutes itself for Congress and the Executive Branch  — and the hundreds of millions of people they represent —  in making this Nation’s most important, as well as most contested, policy decisions.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Separation of powers MOHELA is fully capable of representing its  own interests, and always has done so before. The injury to MOHELA thus does not entitle Missouri — under our normal standing rules—  to go to court. And those normal rules are more than just rules: They are, as this case shows, guarantors of our constitutional order. The requirement that the proper party — the party actually affected—  challenge an action ensures that courts do not overstep their proper bounds.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Separation of powers Our third-party standing rules … exist to separate powers in that way — to send political issues to political institutions, and retain only legal controversies, brought by plaintiffs who have suffered real legal injury. If MOHELA had brought this suit, we would have had to resolve it, however hot or divisive. But Missouri? In adjudicating Missouri’s claim, the majority reaches out to decide a matter it has no business deciding. It blows through a constitutional guardrail intended to keep courts acting like courts.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Separation of powers The policy judgments, under our separation of powers, are supposed to come from Congress and the President. But they don’t when the Court refuses to respect the full scope of the delegations that Congress makes to the Executive Branch. When that happens, the Court becomes the arbiter — indeed, the maker—of national policy. … (“The Court, rather than Congress, will decide how much regulation is too much”). That is no proper role for a court. And it is a danger to a democratic order.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
 
Separation of powers Wielding its judicially manufactured heightened-specificity requirement, the Court refuses to acknowledge the plain words of the HEROES Act. It declines to respect Congress’s decision to give broad emergency powers to the Secretary. It strikes down his lawful use of that authority to provide student-loan assistance. It does not let the political system, with its mechanisms of account- ability, operate as normal. It makes itself the decisionmaker on, of all things, federal student-loan policy. And then, perchance, it wonders why it has only compounded the “sharp debates” in the country?  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com