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Separation of powers under the United States Constitution

2007 Schools Wikipedia Selection. Related subjects: Law

   Separation of powers is a political doctrine under which the
   legislative, executive and judicial branches of government are kept
   distinct, to prevent abuse of power. This US form of seperation of
   powers is widely known as "checks and balances."

   The principle of separation of powers traces its origins at least as
   far back as Aristotle's time. During the Age of Enlightenment, several
   philosophers, such as John Locke and James Harrington, advocated the
   principle in their writings, whereas others such as Thomas Hobbes
   strongly opposed it. Montesquieu was one of the foremost supporters of
   separating the legislature, the executive and the judiciary. His
   writings considerably influenced the opinions of the framers of the
   United States Constitution. Some charge, however, that the Framers
   misinterpreted Montesquieu. According to Isaac Rice (a nineteenth
   century political scientist), Montesquieu opposed concentrating power
   in a single person, rather than a single source. It was Montesquieu
   himself who developed the idea of establishing a form of separation of
   power in government. The United States borrowed some of the
   philosophies of Montesquieu to create the system of checks and balances
   that is present in the United States government today. Rice therefore
   suggested that a parliamentary system—which would not comply with the
   strict doctrine of separation of powers—would nevertheless be
   consistent with Montesquieu's philosophy.

   Strict separation of powers did not operate in Britain, a country whose
   political structure served in several instances as a model for the
   government created by the United States Constitution. In Britain, the
   King-in-Parliament (the King acting with the consent of the House of
   Lords and House of Commons) was the supreme lawmaking authority. The
   executive branch acted in the name of the King—it was known as "His
   Majesty's Government"—as did the judiciary. The King's Ministers were
   in most cases members of one of the two Houses of Parliament, and the
   Government needed to sustain a majority in the House of Commons. One
   minister, the Lord Chancellor, was at the same time the sole judge in
   the Court of Chancery and the presiding officer in the House of Lords.
   Thus, one may conclude that the three branches of British government
   often violated the strict principle of separation of powers, even
   though there were many occasions when the different branches of the
   government disagreed with each other.

   Some American states did not observe a strict separation of powers in
   the eighteenth century. In New Jersey, the Governor also functioned as
   a member of the state's highest court and as the presiding officer of
   one house of the Legislature. The President of Delaware was a member of
   the Court of Appeals; the presiding officers of the two houses of the
   state legislature also served in the executive department as Vice
   Presidents. In both Delaware and Pennsylvania, members of the executive
   council served at the same time as judges. On the other hand, many
   southern states explicitly required separation of powers. Maryland,
   Virginia, North Carolina and Georgia all kept the branches of
   government "separate and distinct."

Separation of powers in the United States

Legislative power

   Congress has the sole power to legislate for the United States. Under
   the non-delegation doctrine, Congress may not delegate its lawmaking
   responsibilities to any other agency. In this vein, the Supreme Court
   held in the 1998 case Clinton v. City of New York that Congress could
   not delegate a " line-item veto" to the President, by which he was
   empowered to selectively nullify certain provisions of a bill before
   signing it.

   Where Congress does not make so great and sweeping a delegation of its
   authority, the Supreme Court has been less stringent. One of the
   earliest cases involving the exact limits of non-delegation was Wayman
   v. Southard (1825). Congress had delegated to the courts the power to
   prescribe judicial procedure; it was contended that Congress had
   thereby unconstitutionally clothed the judiciary with legislative
   powers. While Chief Justice John Marshall conceded that the
   determination of rules of procedure was a legislative function, he
   distinguished between "important" subjects and mere details. Marshall
   wrote that "a general provision may be made, and power given to those
   who are to act under such general provisions, to fill up the details."

   Marshall's words and future court decisions gave Congress much latitude
   in delegating powers. It was not until the 1930s that the Supreme Court
   held a delegation of authority unconstitutional. In a case involving
   the creation of the National Recovery Administration called A.L.A.
   Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), Congress
   could not authorize the President to formulate codes of "fair
   competition." It was held that Congress must set some standards
   governing the actions of executive officers. The Court, however, has
   deemed that phrases such as "just and reasonable," "public interest"
   and "public convenience" suffice.

Executive power

   Executive power is vested in the President. The principal
   responsibility of the President is to "take care that the laws be
   faithfully executed." By using these words, the Constitution does not
   require the President to personally enforce the law; rather, officers
   subordinate to the President may perform such duties. It has been held
   that the Constitution, by empowering him to ensure the faithful
   execution of laws, permits the President to terminate the appointment
   of an executive officer. Congress may not itself terminate such
   appointments or restrict the President's power to do the same.
   Nevertheless, the President's control does not extend to non-executive
   agencies. It was held that bodies such as the War Claims Commission,
   the Interstate Commerce Commission and the Federal Trade Commission—all
   quasi-judicial or quasi-legislative entities—were not subject to the
   President's whims.

   Congress may not unilaterally restrain executive officials in the
   performance of their duties. In INS v. Chadha (1983), the Supreme Court
   struck down a law which authorized either House of Congress to veto an
   executive decision made by the Attorney General. Further rulings
   clarified the case; even both Houses acting together cannot veto
   executive rulings. Nevertheless, legislation may prescribe regulations
   governing executive officers. Legislation differs from a unilateral
   congressional veto in that the latter is not presented to the President
   for his approval (see checks and balances below).

Judicial power

   The judicial power — the power to decide cases and controversies—is
   vested in the Supreme Court and inferior courts established by
   Congress. The judges must be appointed by the President with the advice
   and consent of the Senate, hold office for life and receive
   compensations that may not be diminished during their continuance in
   office. If a court's judges do not have such attributes, the court may
   not exercise the judicial power of the United States. Courts exercising
   the judicial power are called "constitutional courts."

   Congress may create "legislative courts," which frequently take the
   form of quasi-judicial agencies or commissions whose members do not
   have the same security of tenure or compensation as the constitutional
   court judges. Legislative courts may not exercise the judicial power of
   the United States. In Murray's Lessee v. Hoboken Land & Improvement Co.
   (1856), the Supreme Court held that a legislative court may not decide
   "a suit at the common law, or in equity, or admiralty," as such a suit
   is inherently judicial. Legislative courts may only adjudicate "public
   rights" questions (cases between the government and an individual
   involving political determinations).

Checks and balances

   Separation of powers is not absolute; it is instead qualified by the
   doctrine of checks and balances. James Madison wrote that the three
   branches "should not be so far separated as to have no constitutional
   control over each other." The system of checks and balances is designed
   to allow each branch to restrain abuse by each other branch.

Congress

   The Senate has the power to try impeachments. Shown above is the
   impeachment trial of Andrew Johnson.
   The Senate has the power to try impeachments. Shown above is the
   impeachment trial of Andrew Johnson.

   The compensation of executive officials and judges is determined by
   Congress, but Congress may not increase or diminish the compensation of
   a President, or diminish the compensation of a judge, during his term
   in office. Congress determines its own members' emoluments as well, but
   the Twenty-seventh Amendment precludes an increase in congressional
   salary from taking effect until after the next biennial congressional
   election.

   The House of Representatives has the power to impeach both executive
   officials and judges; the Senate tries all impeachments. Note that
   Senators and Representatives are not considered civil officers: they
   are not subject to impeachment (but either House may expel one of its
   members by a two-thirds vote). While a simple majority is sufficient to
   impeach in the House of Representatives, a two-thirds majority in the
   Senate is necessary for conviction. Removal from office upon conviction
   is automatic. The Senate may impose the further punishment of barring
   the convict from ever holding an office under the United States. No
   punishment other than removal from office and prohibition from holding
   future office is permitted in impeachment trials, but convicts remain
   liable to regular criminal proceedings and punishment thereafter.

   Congress exercises a check over the composition of the executive
   branch. When no Presidential candidate has a majority in the Electoral
   College, the House of Representatives chooses between the top three
   candidates (under the Twelfth Amendment). The Senate performs a similar
   function with regards to Vice Presidential elections; the Senate's
   choice is limited to the two highest-placed candidates. When there is a
   vacancy in the office of Vice President, the President may fill it with
   the approval of both houses of Congress. Furthermore, the Senate's
   advice and consent is required for appointments of Cabinet members,
   ambassadors and other senior executive officers. When the Senate is in
   recess, however, the President may make temporary appointments, called
   recess appointments, without any confirmation process.

   Congress may also influence the composition of the judicial branch, as
   may the President. Congress may establish courts inferior to the
   Supreme Court and set their jurisdiction. Furthermore, Congress
   regulates the size of the courts. Judges are appointed by the President
   with the advice and consent of the Senate.

The President

   The President exercises a check over Congress through his power to veto
   bills, but Congress may override any veto except for a pocket veto by a
   two-thirds majority in each house. When the two houses of Congress
   cannot agree on a date for adjournment, the President may settle the
   dispute. Either house or both houses may be called into emergency
   session by the President. Finally, the Vice President serves as
   President of the Senate.

   The President, as noted above, appoints judges with the Senate's advice
   and consent. He also has the power to issue pardons and reprieves. Such
   pardons are not subject to confirmation by either house of Congress, or
   even to acceptance by the recipient.

   The President is the civilian Commander in Chief of the Army and Navy
   of the United States.

The courts

   Courts check both the executive branch and the legislative branch
   through judicial review. This concept is not written into the
   Constitution, but was envisioned by many of the Constitution's Framers
   (for example, the Federalist Papers mention it). The Supreme Court
   established a precedent for judicial review in Marbury v. Madison.
   There were protests by some at this decision, borne chiefly of
   political expediency, but political realities in the particular case
   paradoxically restrained opposing views from asserting themselves. For
   this reason, precedent alone established the principle that a court may
   strike down a law it deems unconstitutional.

   A common misperception is that the Supreme Court is the only court that
   may determine constitutionality; the power is exercised even by the
   inferior courts. But only Supreme Court decisions are binding across
   the nation. Decisions of a Court of Appeals, for instance, are binding
   only in the circuit over which the court has jurisdiction.

   The power to review the constitutionality of laws may be limited by
   Congress, which has the power to set the jurisdiction of the courts.
   The only constitutional limit on Congress' power to set the
   jurisdiction of the judiciary relates to the Supreme Court; the Supreme
   Court may exercise only appellate jurisdiction except in cases
   involving states and cases affecting foreign ambassadors, ministers or
   consuls.

   The Chief Justice presides in the Senate during a President's
   impeachment trial. The rules of the Senate, however, generally do not
   grant much authority to the presiding officer. Thus, the Chief
   Justice's role in this regard is a limited one.

Equality of the branches

   The Constitution does not explicitly indicate the pre-eminence of any
   particular branch of government, and on the contrary, James Madison
   wrote in Federalist 51, regarding the ability of each branch to defend
   itself from actions by the others, that "it is not possible to give to
   each department an equal power of self-defense. In republican
   government, the legislative authority necessarily predominates."

   One may accurately claim that the judiciary has historically been the
   weakest of the three branches. Its power to exercise judicial
   review—its sole meaningful check on the other two branches—was itself
   doubted by many. In fact, the Court exercised its power to strike down
   an unconstitutional Act of Congress only twice prior to the Civil War:
   in Marbury v. Madison (1803) and Dred Scott v. Sandford (1857). While
   the Supreme Court has since then made more extensive use of judicial
   review, it cannot be said to have as much political power as either
   Congress or the President.

   The first six Presidents of the United States did not make extensive
   use of the veto power: George Washington only vetoed two bills, James
   Monroe one, and John Adams, Thomas Jefferson and John Quincy Adams
   none. James Madison, a firm believer in a strong executive, vetoed
   seven bills. None of the first six Presidents, however, used the veto
   to direct national policy. It was Andrew Jackson, the seventh
   President, who was the first to use the veto as a political weapon.
   During his two terms in office, he vetoed twelve bills—more than all of
   his predecessors combined. Furthermore, he defied the Supreme Court in
   enforcing the policy of Indian Removal; he famously said, "John
   Marshall has made his decision. Now let him enforce it!"

   Some of Jackson's successors made no use of the veto power, while
   others used it intermittently. It was only after the Civil War that
   Presidents began to use the power to truly counterbalance Congress.
   Andrew Johnson's struggles with Congress are particularly notable.
   Johnson, a Democrat, vetoed several Reconstruction bills passed by the
   "Radical Republicans." Congress, however, managed to override fifteen
   of Johnson's twenty-nine vetoes. Furthermore, it attempted to curb the
   power of the Presidency by passing the Tenure of Office Act. The Act
   required Senate approval for the dismissal of senior Cabinet officials.
   When Johnson deliberately violated the Act, which he felt was
   unconstitutional (Supreme Court decisions later vindicated such a
   position), the House of Representatives impeached him; he was acquitted
   in the Senate by one vote.
   Grover Cleveland worked to restore power to the Presidency after Andrew
   Johnson's impeachment.
   Grover Cleveland worked to restore power to the Presidency after Andrew
   Johnson's impeachment.

   Johnson's impeachment was perceived to have done great damage to the
   Presidency, which came to be almost subordinate to Congress. Some
   believed that the President would become a mere figurehead, with the
   Speaker of the House of Representatives becoming a de facto Prime
   Minister. Grover Cleveland, the first Democratic President following
   Johnson, attempted to restore the power of his office. During his first
   term, he vetoed over four hundred bills—twice as many bills as his
   twenty-one predecessors combined. He also began to suspend bureaucrats
   who were appointed as a result of the patronage system, replacing them
   with more "deserving" individuals. The Senate, however, refused to
   confirm many new nominations, instead demanding that Cleveland turn
   over the confidential records relating to the suspensions. Cleveland
   steadfastly refused, asserting, "These suspensions are my executive
   acts ... I am not responsible to the Senate, and I am unwilling to
   submit my actions to them for judgment." Cleveland's popular support
   forced the Senate to back down and confirm the nominees. Furthermore,
   Congress finally repealed the controversial Tenure of Office Act that
   had been passed during the Johnson Administration. Thus, Cleveland's
   Administration marked the end of Presidential subordination.

   Several twentieth-century Presidents have attempted to greatly expand
   the power of the Presidency. Theodore Roosevelt, for instance, claimed
   that the President was permitted to do whatever was not explicitly
   prohibited by the law—in direct contrast to his immediate successor,
   William Howard Taft. Franklin Delano Roosevelt held considerable power
   during the Great Depression. Congress had granted Franklin Roosevelt
   sweeping authority; in Panama Refining v. Ryan, the Court for the first
   time struck down a Congressional delegation of power as violative of
   the doctrine of separation of powers. The aforementioned Schechter
   Poultry Corp. v. United States, another separation of powers case, was
   also decided during Franklin Roosevelt's Presidency. In response to
   many unfavorable Supreme Court decisions, Roosevelt introduced a “Court
   Packing” plan, under which more seats would be added to the Supreme
   Court for the President to fill. Such a plan (which was defeated in
   Congress) would have seriously undermined the judiciary's independence
   and power.

   Richard Nixon—whose Presidency is sometimes described as "Imperial"
   (see Imperial Presidency)—used national security as a basis for his
   expansion of power. He asserted, for example, that "the inherent power
   of the President to safeguard the security of the nation" authorized
   him to order a wiretap without a judge's warrant. Nixon also asserted
   that " executive privilege" shielded him from all legislative
   oversight; furthermore, he impounded federal funds (that is to say, he
   refused to spend money that Congress had appropriated for government
   programs). In the cases aforementioned, however, the Supreme Court
   ruled against Nixon. Even then, Nixon's successors have sometimes
   asserted that they may act in the interests of national security or
   that executive privilege shields them from Congressional oversight.
   Though such claims have in general been more limited than Nixon's, one
   may conclude that the Presidency's power has been greatly augmented
   since the eighteenth and nineteenth centuries.

   The rise of the presidency was also aided by the rise of a modern media
   establishment. In an era of limited attention spans and shortened time
   for television news, it was easier for journalists to focus on the
   actions of one centralized, decisive figure—the President—than on the
   actions of a loose, decentralized, milling chamber of equals, like the
   Senate or House.

Views on separation of powers

   The division of powers in the United States has often been criticized
   as promoting inefficiency; when different parties hold Congress and the
   Presidency, a lack of co-operation may deadlock the legislative
   process. English author Walter Bagehot famously criticized the U.S.
   system on these grounds in his 1867 book The English Constitution,
   specifically noting the events during the administration of Andrew
   Johnson. Several individuals have proposed that a parliamentary
   system—in which the same party or coalition of parties controls both
   the executive and the legislature—would function more efficiently.
   Advocates of a parliamentary system have included President Woodrow
   Wilson. In comparing the English parliamentary system with the American
   system, Bagehot wrote:

          "The English Constitution, in a word, is framed on the principle
          of choosing a single sovereign authority, and making it good:
          the American, upon the principle of having many sovereign
          authorities, and hoping that the multitude may atone for their
          inferiority."

   Many political scientists believe that separation of powers is a
   decisive factor in what they see as a limited degree of American
   exceptionalism. In particular, John Kingdon made this argument,
   claiming that separation of powers contributed to the development of a
   unique political structure in the United States. He attributes the
   unusually large number of interest groups active in the United States,
   in part, to the separation of powers; it gives groups more places to
   try to influence, and creates more potential group activity. He also
   cites its complexity as one of the reasons for lower citizen
   participation.
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