The late Justice Antonin Scalia called the separation of powers the most unique and freedom-enhancing aspect of the document. Madison himself would later argue that he intentionally crafted the separation so as to enhance friction and even jealousy among the three branches of government, thereby inducing fidelity to its core values, as well as transparency and accountability in the popular branches.

Thus, Congress writes the laws, the president enforces the laws, and the judiciary interprets the Constitution and the laws. Congress raises taxes and declares war. The president appoints judges and wages war. The judiciary assures that neither Congress nor the president interferes with personal liberty.

Congress and the president are answerable to the voters. The life-tenured judiciary is not. The purpose of an independent judiciary is to be the anti-democratic branch of the government. Its duty is not to reflect the popular will, but rather to protect life, liberty and property from the whims of the popular branches.

In the post-World War II era, Congress has attempted to give away some of its powers to the presidency. For example, even though the Constitution declares that only Congress can spend federal dollars, it has often appropriated funds for the president to spend as he sees fit — and presidents in turn have often delegated those spending decisions to folks whom they have hired.

As well, modern presidents have started dozens of wars without congressional declarations of war, and Congress has looked the other way. Congress even permits the president to raise taxes — so long as he calls them tariffs — and declare an emergency of his own making.

Can the Congress constitutionally give away some of its powers to the president? The short answer is: NO.

The longer answer is far more complex as, unless a proper case is properly before the court, there is no mechanism to prevent this transfer of power. Justice Scalia steadfastly maintained that delegated powers cannot be redelegated. The purpose of the separation of powers is not to enhance the hegemony of each branch of government. Rather, it is to safeguard personal liberty by preventing one branch from dominating either of the other two.

Stated differently, its purpose is to prevent tyranny.

There are numerous other structural constitutional limitations on the government. Thus, for example, the First Amendment does not create the freedoms of speech and the press; rather it bars the government from interfering with these preexisting rights.

As well, the Fifth Amendment guarantees due process whenever the government seeks the life, liberty or property of any person, citizen or not. Due process, in this context, means a fair hearing before a neutral independent judge who has no interest in the outcome of the case. Due process presumes that if the process is fair and just, the outcome will be respected and followed.