The Constitutional Separation of Powers
Unlawful actions of the current administration
The existence of the three branches of government was intended to ensure that not any one individual or entity had all the power in the United States. The Constitutional doctrine of the separation of power ensures that the three branches serve as checks and balances against each other to prevent an abuse of power and “tyranny of the majority.”
The U.S. Constitution grants no authority to the Executive Branch to override the separation of powers doctrine.
The following actions by the current Administration appear to violate the Constitution and/or federal law:
- Birthright citizenship. The Presidential ordered that United States’ agencies deny U.S. Citizenship to individuals born in the United States to undocumented However, the Fourteenth Amendment to the Constitution says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The only recognized exception is the children of foreign diplomats.
- National Labor Relations Board (NLRB). The termination of NLRB Member Gwynne Wilcox violated the National Labor Relations Act, which only allows for removal of Board members “for neglect and malfeasance” after a hearing has occurred. In Humphrey’s Executor United States, 295 U.S. 602 (1935), the United States Supreme Court ruled that the President cannot remove administrative officials for reasons other than what is permitted by law. On March 6, 2025, the DC District Court ruled that the termination was unlawful and reinstated Board member Wilcox to her position. This means that the Board again has a quorum to decide cases.
- Equal Employment Opportunity Commission (EEOC). The termination of an EEOC Commissioner violates the provision in the law See Title VII of the Civil Rights Act of 1964, Section 2000e-4 (a), 42 U.S.C. § 2000e(4)(a), https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964.
- Inspectors The termination of Inspectors General (who serve as a check on government operations) violated the Inspector General Independence and Empowerment Act, which requires a “substantive rationale” for their removal.
- Department of Government Efficiency (DOGE). The creation of DOGE was in violation of the Constitution, which empowers Congress to create federal agencies through In addition, the head of DOGE was not confirmed by the U.S. Senate, which is also required by the Constitution.
- Federal Many of the administration’s ongoing actions regarding the federal workforce are contradictory to federal law. Termination of non-probationary employees has violated their due process rights under federal law and related civil service rules. A federal District Court has ordered that most probationary employees be reinstated, and many have been reinstated but placed on paid leave. https://www.npr.org/2025/03/13/nx-s1-5325959/federal-employees-court-firing.
- If the administration follows through on threats to unilaterally recategorize certain federal employees as “Schedule F” employees, this will also violate civil service protections guaranteed by In addition, the unilateral abrogation of collective bargaining agreements is a violation of the Federal Service Labor-Management Relations Statute (FSLMRS).
- S. Postal Service. The U.S. Constitution gives Congress the authority to establish postal services, and Congress thus created the U.S. Postal Service by passing the Post Office Act of 1792. The Executive Branch does not have the legal authority to dismantle the post office.
Updated March 20, 2025
The opinions set forth in the analysis are those of the author and may not reflect those of the University of Wisconsin-Madison.