Separation of Powers

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The separation of powers is an important part of the United States Constitution, and was originally proposed by the Enlightenment philosopher Montesquieu. With the checks and balances created by the separation of powers, each of the three branches of government can limit the powers of the others. This way, no one branch becomes too powerful. A strict separation of powers doctrine has two prohibitions. First, no branch may encroach upon the powers of another. Second, no branch may delegate to another branch its constitutionally assigned power.

The three branches of government are the Legislative branch, the Judicial branch and the Executive branch. The Legislative branch consists of the two houses of Congress: The Senate and The House of Representatives. The Judicial Branch consists of the Federal Court System led by the Supreme Court. The Executive branch consists of the President and his Cabinet.

James Madison, America's fourth President, at the Constitutional Convention in 1787, proposed to set up the three branches of the U.S. government; Judicial, Legislative, Executive. He discovered this as the model, reading Isaiah 33:22 : “For the LORD is our judge, the LORD is our lawgiver, the LORD is our final judge; He will save us.” Madison wrote in Federalist No. 47:

No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty, than [separation of powers].[1]

Separation of powers prevents the aggregation of infinite authority, or tyranny, in one person or group.

Powers of the Three Branches

Powers of the Legislative Branch

The powers of the Legislative branch are listed in United States Constitution:Article I of the Constitution, including:

  • Impeachment, (The House)
  • The trial of impeachments, (the Senate)
  • Power To lay and collect Taxes, Duties, Imposts and Excises,
  • to pay the Debts and provide for the common Defense and general Welfare of the United States,
  • To borrow Money on the credit of the United States,
  • To regulate Commerce with foreign Nations,
  • To establish a uniform Rule of Naturalization,
  • To establish uniform Laws on the subject of Bankruptcies,
  • To coin Money,[2] and regulate the Value thereof,
  • To establish Post Offices and post Roads,
  • To constitute Tribunals inferior to the Supreme Court,
  • To declare War,
  • To raise and support Armies,
  • To provide and maintain a Navy,
  • To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.
  • Ratify Treaties, (two-thirds vote of the Senate)
  • Confirm Presidential appointments,
  • Override of Presidential Veto (two-thirds vote of each house)

Powers of the Executive Branch

The President has the following powers:

  • Veto of acts of Congress
  • Commander in Chief of the Armed Forces,
  • Power to pardon, except in cases of impeachment,
  • Make Treaties
  • Appointment of Ambassadors, other public ministers and consuls, Judges to the federal courts, and all other Officers of the United States,

The Vice President has the tiebreaking vote in the Senate.

Powers of the Judicial Branch

The Jurisdiction of the Federal Court System includes:

  • All cases arising under:
    • The Constitution,
    • The Laws of the United States,
    • Treaties,
  • All Cases involving:
    • Ambassadors,
    • Public Ministers,
    • Consuls,
  • All cases of:
  • Controversies
    • To which the United States shall be a party,
    • Between two or more States,
    • Between Citizens of different States,
    • Between Citizens of the same State claiming Lands under Grants of different States,

The Power of Judicial Review was added by the Supreme court Decision Marbury v. Madison by Chief Justice John Marshall. The power was said to be implied in Article III Section 2 of the Constitution.

Checks and Balances

All three branches check and balance each other.

Legislative Branch

The Legislative branch is checked by the other branches because of the following:

  • The President's veto power,
  • Judicial review,
  • The Vice President is President of the Senate and has the Tiebreaking vote.

The Legislative branch checks the other branches the following ways:

  • They confirm the President's appointments,
  • They have the power to impeach the President,
  • They can override a Presidential veto,
  • The President cannot make any law that has not been passed by them,
  • They can impeach Judges,
  • They can limit the jurisdiction of the courts.

Executive Branch

The Executive branch is checked by the other branches because of the following:

  • The President's appointments are confirmed by the senate,
  • He is subject to impeachment,
  • He cannot make laws that were not passed by congress,
  • The laws that he does sign are subject to judicial review,
  • His veto can be overturned by a two-thirds vote in congress.

The Executive branch checks the other branches because:

  • The president has veto power,
  • He appoints judges,
  • He can enact decrees,
  • The Vice President is President of the Senate, and has the tie-breaking vote.

Some theories, such as the Unitary Executive Theory, place the President(executive) outside the reach of checks and balances.

See also