Separation of powers under the United States Constitution

Separation of powers is a political doctrine under which the executive, legislative and judicial branches of government are kept distinct, to prevent abuse of power. This US form of separation 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.

Strict separation of powers did not operate in Britain, a country whose political structure served in most instances as a model for the government created by the US Constitution. In the UK, 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 US states did not observe a strict separation of powers in the 18th 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 nondelegation 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. The Constitution Article I, Section 8; (and especially the necessary and proper clause as summation) gives all the Power to Congress. Congress has the exclusive power to legislate, to make laws and in addition to the enumerated powers it has all other powers vested in the government by the Constitution.

The President has the responsibility to preserve, protect and defend the Constitution and the Laws of the United States in much the same way as a vassal takes an oath of allegiance to his liege lord. He is delegated authority by and with the advice and consent of the Senate, but the Congress can never give its power away.

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, except by impeachment, 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 three-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 or 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

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.

Legislative	Executive	Judicial
Writes and enacts laws Enacts taxes, authorizes borrowing, and sets the budget Has sole power to declare war May start investigations, especially against the executive branch Often appoints the heads of the executive branch Sometimes appoints judges Ratifies treaties	May veto laws May refuse to spend money allocated for certain purposes Wages war (has operational command of the military) Makes decrees or declarations (for example, declaring a state of emergency) and promulgates lawful regulations and executive orders Often appoints judges Has power to grant pardons to convicted criminals	Determines which laws apply to any given case Determines whether a law is unconstitutional Has sole power to interpret the law and to apply it to particular disputes May nullify laws that conflict with a more important law or constitution Determines the disposition of prisoners Has power to compel testimony and the production of evidence Enforces uniform policies in a top-down fashion via the appeals process, but gives discretion in individual cases to low-level judges. (The amount of discretion depends upon the standard of review, determined by the type of case in question.) Polices its own members Is frequently immune to arbitrary dismissal by other branches

Legislative

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.

Executive

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 the House of Representatives or the Senate, or even to acceptance by the recipient.

The President is the civilian Commander in Chief of the Army and Navy of the United States. However, it is the Congress that has the power to raise, fund and maintain the armed forces, and to prescribe the laws and regulations under which the armed forces operate, such as the Uniform Code of Military Justice. Congress also has the sole power to declare war, and requires that all Generals and Admirals appointed by the President be confirmed by a majority vote of the Senate before they can assume their office.

Judicial

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.

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 specific cases aforementioned, however, the Supreme Court ruled against Nixon, especially since a criminal investigation was ongoing as to the Watergate tapes, even though they acknowledged the general need for executive privilege. Since 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 still 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.

Recent Developments: Judicial Independence

Separation of powers has again become a current issue of some controversy concerning debates about Judicial independence and political efforts to increase the accountability of judges for the quality of their work, avoiding conflicts of interest, and charges that some judges allegedly disregard procedural rules, statutes, and higher court precedents.

It is said on one side of this debate that separation of powers means that powers are shared among different branches. That is, no one branch may act unilaterally on issues (other than perhaps minor questions) but must obtain some form of agreement across branches. That is, it is argued that "checks and balances" apply to the Judicial Branch as well as to the other branches.

It is said on the other side of this debate that separation of powers means that the Judiciary is independent and untouchable within the Judiciaries' sphere. In this view, separation of powers means that the Judiciary alone holds all powers relative to the Judicial function and the Legislative and Executive Branches may not interfere in any aspect of the Judicial Branch.

An example of the first view is the regulation of attorneys and judges, and the establishment of rules for the conduct of the courts, by the Congress and in the states the legislatures. Although in practice these matters are delegated to the Supreme Court, the Congress holds these powers and delegates them to the Supreme Court only for convenience in light of the Supreme Court's expertise, but can withdraw that delegation at any time.

An example of the second view at the State level is found in the view of the Florida Supreme Court that only the Florida Supreme Court may license and regulate attorneys appearing before the courts of Florida and only the Florida Supreme Court may set rules for procedures in the Florida courts. The State of New Hampshire also follows this system.