Our crumbling foundation: When separation of powers fails.

I often think about the inertia I have felt and am feeling on every level of my life. The trauma we’re experiencing spills over into everything we do.

I am luckier than some of you reading this. I have a good support system. I have a home and my pantry is anything but empty. I set my own hours, which means I can sleep when my body cannot take any more, or I can watch silly football games or ancient sitcoms. I don’t have anyone else depending on me for their survival—neither children nor a parent or spouse for whom I am caregiver. I know from my experience as sole caregiver for my mom what that means. 

Those of you who must get up every morning and tend to someone else’s needs, or who are navigating these days without adequate support, or who must somehow show up to work in a reasonable frame of mind, sleep or no sleep: You have my utmost respect. If you ever feel overwhelmed, shoot me a message and I will do my best to encourage you. I have been there, done that, and I cannot manage to give away that crappy t-shirt.

And if you are “brown,” an immigrant, a refugee, married to an immigrant or refugee, someone whose life or family is in danger… it goes beyond respect. I am at a loss for words as to what my country is doing to you and those you love.

This post therefore represents cleaning that one room, dragging out my purple Shark and making sense of one element of the insanity that floods our lives in January 2026.

When considering where to begin, I looked at the legislative topics I’m following. Should I start with DHS—funding, Republicans wishing to grant them a ton of extrajudicial power, the non-DHS agencies that are being folded under Noem’s supremacy? Should I write about civil rights and human rights, and the Democrats’ strong legislation that would protect us as US citizens? Or should the first post look at Trump’s power grab in Washington, DC as template for what he is seeking to accomplish across the nation?

All of those are critical, as is legislation addressing SNAP, low-income housing, public lands, the environment, LGBTQIA+ rights, Medicaid, doge, rural healthcare… you get the idea. So much is screwed up because of MAGA’s single-minded intention to destroy everything that we have been working for, moving towards, hoping to become. And because of the cowardice of Republicans who are too fearful to stand up to the playground bully.

I want to shout for the world to hear: Our Democrats are working their butts off, they are doing what we elected them to do! And give you example after example where that is the case.

Yet as I am pulling out that purple Shark, I realize that not one bit of the legislation could possibly make a difference at this time. If the bill introduced by Sen. Jeff Merkley (D-OR) “to address transnational repression by foreign governments against private individuals” were to be passed, it would mean nothing as long as our own government itself seeks to “intimidate, silence, harass, coerce, or harm individuals, such as political dissidents, activists, journalists, political opponents, religious and ethnic minority groups, international students, and members of diaspora and exile communities.” It’s a great piece of legislation.

But.

Central to our form of democracy is this notion of separation of powers. We view our government as three separate and co-equal branches of power. The Constitution grants each branch unique authority, resulting in a system of checks and balances.

As I prepared to write this essay, I searched for specifics about this design. Is there, for example, anything explicit in the Constitution that states that the reason for three branches of government is a desire for checks and balances? If so, are there penalties or consequences for overstepping those boundaries?

Overwhelmingly, constitutional scholars explain that it’s not explicit, but rather it’s part of our DNA. Separation of powers developed from that original American Revolution. Founding Fathers had had quite enough of a king making all the decisions, with a prime minister and parliament sycophantically subservient to the wishes of one man.

The Constitution therefore took the power relegated “by divine right” to a monarch and split it among three equally powerful branches of government. There’s no penalty for overstepping, because each branch has the power and authority to push back as needed. (I am not gonna look for synonyms for power and authority. It is what it is.)

Scholars from Columbia University put it this way:

The American system of separation of powers is not the most common arrangement of democratic institutions in the modern world. Most modern democracies are parliamentary systems, in which the legislative branch is sovereign, and the executive has no independent constitutional base of authority, instead being chosen by the legislature. … At their core, parliamentary systems are based on contested elections followed by unified party control of the powers of government.

This is quite emphatically not the case with the American system. Our constitutional system is based on contested elections followed by separated control of the powers of governing. The system, by design, produces conflict. (Emphasis mine.)

In the best of times, we live under a very messy government. You want a new ZIP code for your neighborhood? You’ve got to get a majority of legislators to back it. You think FEMA should be the responsibility of 50+ states and territories, not the U.S. government? Legislators need to make that law. You think telehealth should be covered by Medicaid? Find enough legislators who agree with you and pass a bill.

You’re a Supreme Court Justice and you think abortion should be banned nationwide, so you rule that previous legislation is unconstitutional? Sorry buster. You have to define what makes it unconstitutional. The legislature can then “cure” your objections and pass that as law. And you can’t do anything about it.

You’re the president and you think the Speaker of the House should be responsible for spit-shining your shoes? You can publish an Executive Order. But by golly, it ain’t law and the Speaker doesn’t report to you. The Speaker can thumb her nose at you and you cannot imprison the Speaker. You’re the president and you want to declare war on Greenland? Sorry sir, that’s not your right or privilege. Doesn’t matter how many Executive Orders you publish, you can’t do that. Period. Rant all you want.

My purple Shark, therefore, is “vacuuming this room” first.

The entire foundation for our peculiar form of government is crumbling before our eyes. I wasn’t being silly when I used ZIP codes as example above. A new ZIP code requires legislation. Even worse, it requires going through the committees that oversee Department of Homeland Security! How messed up is that!

We’re also watching helplessly as the Supreme Court of the United States of America behaves extrajudicially. Precedent? What’s that? And the six who proclaimed themselves “originalists” ignore the Constitution when rendering decisions. They are basing their rulings on their personal religious tenets, in direct violation of the First Amendment of that very Constitution. Life beginning at conception? Evangelical and Catholic, certainly not Jewish or Hindu.

This president also clearly does not understand the legal basis for or intent of Executive Orders. An EO is a communication from the president or “chief executive officer” of the USA to their agency heads, that is, to the directors of executive agencies (think “Cabinet members” and the people who report to them).

A clear example of the correct use of EOs: Pres. Biden’s EOs related to SaaS, cybersecurity, AI, and data privacy. EO 14028 dated May 12, 2021 directed Department of OMB to provide certain information, in consultation with Secretary of Defense, Attorney General, and others, within 60 days. Secretary of Homeland Security was to provide a game plan for language to be used within 45 days, in conjunction with Secretary of Defense and others. Biden was very clear and very specific about deadlines and tasks that each agency was to perform.

Biden also left the fulfillment of these tasks up to each agency. He recognized that they knew more than he about cybersecurity, SaaS, and other risks, and he made it clear that he valued their input.

EO 14110 from October 30, 2023 asked the same agency heads to have their departments research “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” Not bad for an old guy!

Finally, on January 16, 2025, Biden issued EO 14144. He requested that the same agencies “(i) develop standardized metrics to assess AI safety, (ii) facilitate watermarking and clear labeling of AI-generated content, (iii) promote responsible innovation and invest in AI-related training, (iv) ensure that American workers were not negatively affected by AI developments, (v) protect privacy and civil rights including by mitigating the use of AI to discriminate based on personal information, and (vi) manage the risks arising from the government’s use of AI.”

Not law. Not outside his authority. All agencies contacted were in the executive branch, not independent agencies. His requests did not have the power of law, but as a former Senator, he was aware that when experts such as those agency heads would make recommendations, often legislation would follow. Based on sound research implemented in the executive branch.

Those Cabinet Secretaries could and likely would direct agency staff to follow whatever guidelines came about because of the EO. But you and I, citizens of the USA, would not be bound by the results of the EO unless it became law.

Before Pres. Trump directly attacked the separation of powers, before Mike Johnson ceded Congressional authority to the president, Pres. Trump undertook a move that was even more insidious. He issued EO 14215 declaring that all independent agencies are now under his power and authority.

To begin with, Trump has no authority to declare such a thing. That EO is worthless unless codified by Congress. So you understand the gravity of what Trump is trying to do, here are the 17 independent agencies that came into existence by congressional order, and that report neither to Congress nor to the president:

Commodity Futures Trading Commission (CFTC); Consumer Product Safety Commission (CPSC); Environmental Protection Agency (EPA); Equal Employment Opportunity Commission (EEOC); Federal Communications Commission (FCC); Federal Deposit Insurance Corporation (FDIC); Federal Election Commission (FEC); Federal Labor Relations Authority (FLRA); Federal Mine Safety and Health Review Commission (FMHSRC); Federal Reserve System; Federal Trade Commission (FTC); Merit Systems Protection Board; National Labor Relations Board (NLRB); National Transportation Safety Board (NTSB); Security and Exchange Commission (SEC); Small Business Administration (SBA); and, Social Security Administration (SSA).

I have not seen any Republican attempt to codify EO 14215, nor have I seen a Democratic bill that would nullify it. It is not law. These seventeen agencies do not report to Trump. Please watch for further breakdowns of the independence of these critical agencies. They are independent for a reason.

Georgetown University defines an independent agency as follows:

An independent federal agency may be defined as any agency established outside of the Executive Office of the President or the 15 executive departments. Since these agencies are not required to report to a higher official within the executive branch, such as a department secretary, they may be considered independent.

Trump’s power grab is bad enough. Can you imagine the hell that would break loose in factories across America if the NLRB was placed under Department of Labor? Or what would happen to our Social Security and Medicare benefits if that agency reported to Department of Health and Human Services? Or if Trump personally controlled the SEC and the EEOC?

I shudder at the thought.

The reason that this post came first, that this is the first room to be vacuumed: Our legislators are willingly ceding their power and authority to the executive branch, to the president himself. When one executive order after another represents his attempt to bypass legislation and exert his will on the American people, by and large they are letting him get by with it.

As noted at the top, Democrats are indeed pushing back. Sen. Tim Kaine (D-VA) introduced a strong resolution that almost, but almost, passed the Senate. It would have been killed in the House, but still, had it passed the Senate, that would have been something. It would have meant that a handful of Republicans were fed up too.

I’m talking about S.J.Res.98 - A joint resolution to direct the removal of United States Armed Forces from hostilities within or against Venezuela that have not been authorized by Congress.

On January 8, 2026, it looked like the impossible had happened. The discharge vote to prevent the resolution from being killed in committee passed the Senate 52-47. Every last Democrat, both Independents (Bernie Sanders and Angus King), and five Republicans (Rand Paul-KY, Susan Collins-ME, Josh Hawley-MO, Lisa Murkowski-AK, and Jack Reed-RI) voted YEA to force a vote on the Senate floor.

Finally! Finally! The Senate appeared to have grown a backbone. They were going to enforce the separation of powers and show Trump back to his office in the White House. War Powers, man! He cannot declare war, only Congress can! So much hope. So few days.

By January 14, Trump had twisted the arms of those daring Republicans. Hawley, Murkowski, and Reed slunk back to their MAGA cave, content to see the president usurp congressional power. Poor pitiful wretches, afraid of their own shadow.

Thank you, Rand Paul and Susan Collins. We can disagree on a great deal. But at least you two recognize the importance of constitutional checks and balances. For that, I am grateful.

If you look at legislation the second half of 2025, two things become inescapably clear.

1) Republicans know that executive orders are not law and are working to codify Trump’s worst instincts.

2) Democrats also know that executive orders are not law and work to officially nullify them (which would mean they would have no effect even within the executive branch), while simultaneously introducing bills that specifically define congressional power, especially power of the purse.

Republicans seem to focus on the worst of Trump’s EOs for codification. Rep. Keith Self (R-TX) wants to codify EO 14280, which reversed Department of Education and Department of Justice reporting requirements applicable to race-neutral disciplinary policies. Overturned it. No more DEI! No more accountability! Rep. Andy Biggs (R-KY) wants to codify EO 14331, which eliminates DEI from banking policies. Rep. Tim Burchett (R-TN) seeks to codify EO 14292, which abolishes DEI from biological research. Burchett is also the errand boy for codification of EO 14286, which would require all CDL license holders to speak English.

You get the picture. Trump’s executive orders, and the ones that MAGA legislators seem most eager to turn into law, are the ones that destroy diversity, equity, and inclusion measures, that would take us back to the bad old days when employers could hire an underqualified white man over a well-qualified Black woman, no questions asked. It’s worsened by the Orwellian language used, where Trump and his MAGA lackeys in Congress present this harmful legislation as “protecting the rights of all Americans.” Baloney.

See why the independent agencies are important? Why they should not be under the control of the executive branch?

Democrats, on the other hand, submit legislation that would “strengthen and enhance the congressional power of the purse” (H.R.5220); that would amend the National Emergencies Act to improve checks and balances (H.R.3908); that would completely repeal and reverse DOGE (H.R.1535—the “BAD DOGE Act”).

Rep. Bonnie Watson Coleman (D-NJ) has even proposed a bill I love: Stop Padding Presidential Pockets Act. Since Trump seems to have difficulty understanding the complicated “emoluments” terminology, Ms. Watson Coleman breaks it down into fifth-grade vocabulary:

Require anyone who receives Secret Service protection and travels in furtherance of the business interests and financial benefits of the President to reimburse the treasury for costs incurred by the Government pertaining to that travel, including for the provision of Secret Service protection;

Amend the Federal Tort Claims Act so that no sitting president or their immediate family members can file or benefit from a claim while the president is in office;

Amend the Presidential Libraries Act so that the president and their immediate family cannot solicit gifts or donations for their future Presidential library and museum;

Require the President and Vice President to remove themselves from any of their personal business activity and put all their financial holdings into a blind trust; and,

Require the immediate family of the President and Vice President to provide quarterly reports of their financial holdings and refrain from joining boards of for-profit organizations.

That should be clear enough, ya think? To read Ms. Watson Coleman’s elegant bill, see H.R.6831.

None of the excellent Democratic legislation stands a snowball’s chance in Texas unless and until the Speaker of the House is not under the thumb of the president. In an otherwise-humorous aside, in December when the Senate passed a handful of bills that had cleared the House in July, they did so with the following caveat: Johnson, these are the last bills we’re passing until you start referring the bills the Senate passes to House committees. Johnson has been so subservient to Trump that he’s been holding Senate legislation “at the desk” and not referring to committee if it’s something Trump may not like. Beyond sycophantic. It would be funny if it were not having such tragic consequences.

Writing this, I have felt like we are trying to simultaneously put out a grease fire in the kitchen, stop a 1” leak in the attic, unclog the toilet, weatherproof the back door, and find out why Daisy Mae is crying in the living room. Meanwhile, a mud slide has eaten away our crumbling foundation and we’re teetering over a precipice.

And I haven’t got a clue what to do. Except vote. And write.

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© 2026 Denise Elaine Heap. Please contact me for permission to quote.

Image credits: Top photograph--Landslide in Palos Verdes, California, July 2023. © 2023 Denise Elaine Heap. Please contact me for permission to use. Bottom photograph--This is how it can sometimes feel when working "alone" for liberty and justice for all. We must simply keep our craft pointed toward the light. Shopify, public domain for platform users.

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