Separation of powers is a
political
Politics (from , ) is the set of activities that are associated with making decisions in groups, or other forms of power relations among individuals, such as the distribution of resources or status. The branch of social science that stud ...
doctrine
Doctrine (from la, doctrina, meaning "teaching, instruction") is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief syste ...
originating in the writings of
Charles de Secondat, Baron de Montesquieu in ''
The Spirit of the Laws
''The Spirit of Law'' (French: ''De l'esprit des lois'', originally spelled ''De l'esprit des loix''), also known in English as ''The Spirit of the Laws'', is a treatise on political theory, as well as a pioneering work in comparative law, publis ...
'', in which he argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others. This philosophy heavily influenced the drafting of the
United States Constitution, according to which the
Legislative
A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government.
Laws enacted by legislatures are usually known ...
,
Executive
Executive ( exe., exec., execu.) may refer to:
Role or title
* Executive, a senior management role in an organization
** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators
** Executive dir ...
, and
Judicial
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
branches of the United States
government
A government is the system or group of people governing an organized community, generally a state.
In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is ...
are kept distinct in order to prevent
abuse of power
Abuse is the improper usage or treatment of a thing, often to unfairly or improperly gain benefit. Abuse can come in many forms, such as: physical or verbal maltreatment, injury, assault, violation, rape, unjust practices, crimes, or other t ...
. The American form of
separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
is associated with a system of checks and balances.
During the
Age of Enlightenment
The Age of Enlightenment or the Enlightenment; german: Aufklärung, "Enlightenment"; it, L'Illuminismo, "Enlightenment"; pl, Oświecenie, "Enlightenment"; pt, Iluminismo, "Enlightenment"; es, La Ilustración, "Enlightenment" was an intel ...
,
philosophers such as
Montesquieu
Charles Louis de Secondat, Baron de La Brède et de Montesquieu (; ; 18 January 168910 February 1755), generally referred to as simply Montesquieu, was a French judge, man of letters, historian, and political philosopher.
He is the princi ...
advocated the principle in their writings, whereas others, such as
Thomas Hobbes
Thomas Hobbes ( ; 5/15 April 1588 – 4/14 December 1679) was an English philosopher, considered to be one of the founders of modern political philosophy. Hobbes is best known for his 1651 book ''Leviathan'', in which he expounds an influ ...
, strongly opposed it. Montesquieu was one of the foremost supporters of separating the legislature, the executive, and the judiciary. His writings considerably influenced the
Founding Fathers of the United States
The Founding Fathers of the United States, known simply as the Founding Fathers or Founders, were a group of late-18th-century American Revolution, American revolutionary leaders who United Colonies, united the Thirteen Colonies, oversaw the Am ...
, such as
Alexander Hamilton, who participated in the
Constitutional Convention of 1787
The Constitutional Convention took place in Philadelphia from May 25 to September 17, 1787. Although the convention was intended to revise the league of states and first system of government under the Articles of Confederation, the intention fr ...
which drafted the Constitution.
Some U.S. states did not observe a strict separation of powers in the 18th century. In
New Jersey
New Jersey is a state in the Mid-Atlantic and Northeastern regions of the United States. It is bordered on the north and east by the state of New York; on the east, southeast, and south by the Atlantic Ocean; on the west by the Delaware ...
, the governor also functioned as a member of the state's highest court and as the presiding officer of one house of the
New Jersey 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
A vice president, also director in British English, is an officer in government or business who is below the president (chief executive officer) in rank. It can also refer to executive vice presidents, signifying that the vice president is on t ...
. In both
Delaware
Delaware ( ) is a state in the Mid-Atlantic region of the United States, bordering Maryland to its south and west; Pennsylvania to its north; and New Jersey and the Atlantic Ocean to its east. The state takes its name from the adjacent Del ...
and
Pennsylvania
Pennsylvania (; ( Pennsylvania Dutch: )), officially the Commonwealth of Pennsylvania, is a state spanning the Mid-Atlantic, Northeastern, Appalachian, and Great Lakes regions of the United States. It borders Delaware to its southeast, ...
, 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
Maryland ( ) is a state in the Mid-Atlantic region of the United States. It shares borders with Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware and the Atlantic Ocean to ...
,
Virginia
Virginia, officially the Commonwealth of Virginia, is a state in the Mid-Atlantic and Southeastern regions of the United States, between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth ar ...
,
North Carolina
North Carolina () is a state in the Southeastern region of the United States. The state is the 28th largest and 9th-most populous of the United States. It is bordered by Virginia to the north, the Atlantic Ocean to the east, Georgia and ...
and
Georgia
Georgia most commonly refers to:
* Georgia (country), a country in the Caucasus region of Eurasia
* Georgia (U.S. state), a state in the Southeast United States
Georgia may also refer to:
Places
Historical states and entities
* Related to the ...
all kept the branches of government "separate and distinct."
Legislative power
Congress
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...
has the sole power to
legislate for the United States. Under the
nondelegation doctrine
The doctrine of nondelegation (or non-delegation principle) is the theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself. It is explicit ...
, 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
The line-item veto, also called the partial veto, is a special form of veto power that authorizes a chief executive to reject particular provisions of a bill enacted by a legislature without vetoing the entire bill. Many countries have different ...
" to the President, by powers vested in the government by the Constitution.
Where Congress does not make great and sweeping delegations 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'' 23 U.S. (10 Wet.) 1, 42 (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 is 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'', 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
The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a state.
In political systems b ...
is vested, with exceptions and qualifications, in the
President
President most commonly refers to:
*President (corporate title)
* President (education), a leader of a college or university
* President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ...
. By law (Section 2.) the president becomes the Commander in Chief of the Army and Navy, Militia of several states when called into service, has power to make treaties and appointments to office "with the Advice and Consent of the Senate," receive Ambassadors and Public Ministers, and "take care that the laws be faithfully executed" (Section 3.) 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. The Constitution empowers the president to ensure the faithful execution of the laws made by Congress and approved by the President. Congress may itself terminate such appointments, by
impeachment, and restrict the president. Bodies such as the
War Claims Commission
War is an intense armed conflict between states, governments, societies, or paramilitary groups such as mercenaries, insurgents, and militias. It is generally characterized by extreme violence, destruction, and mortality, using regular o ...
(created by the
War Claims Act of 1948 The War Claims Act of 1948, or Public Law 80-896 (62 Stat. 1240; 50 U.S.C.) is a United States federal law passed by the 80th United States Congress on July 3, 1948. It created the War Claims Commission to adjudicate claims and pay out compensatio ...
), the
Interstate Commerce Commission, and the
Federal Trade Commission—all
quasi-judicial
A quasi-judicial body is non-judicial body which can interpret law. It is an entity such as an arbitration panel or tribunal board, that can be a public administrative agency but also a contract- or private law entity, which has been ...
—often have direct Congressional oversight.
Congress often writes legislation to restrain executive officials to the performance of their duties, as laid out by the laws Congress passes. In ''
Immigration and Naturalization Service v. Chadha'' (1983), the Supreme Court decided (a) The prescription for legislative action in Art. I, § 1—requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives—and § 7—requiring every bill passed by the House and Senate, before becoming law, to be presented to the president, and, if he disapproves, to be repassed by two-thirds of the Senate and House—represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers. Further rulings clarified the case; even both Houses acting together cannot override Executive vetoes without a majority. Legislation may always prescribe regulations governing executive officers.
Judicial power
Judicial power
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
—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 during good behavior 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."
However, because Congress controls the budget, jurisdiction, and structure of the federal courts, the judiciary as a branch is better described as largely dependent on Congress rather than independent of it. Although the Constitution, not Congress, creates the Supreme Court, it is Congress that decides whether to create lower federal courts, how to arrange them, how many judges will be appointed to them, and whether to abolish them. Congress also has the power to grant jurisdiction to and withdraw jurisdiction from, lower federal courts. Moreover, although judges have the power to issue final judgments, they must rely on the executive for enforcement.
Congress may also establish "legislative courts," which do not take the form of 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
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
, or in
equity, or
admiralty
Admiralty most often refers to:
*Admiralty, Hong Kong
*Admiralty (United Kingdom), military department in command of the Royal Navy from 1707 to 1964
*The rank of admiral
*Admiralty law
Admiralty can also refer to:
Buildings
* Admiralty, Traf ...
," as such a suit is inherently judicial. Legislative courts may only adjudicate "public rights" questions (cases between the government and an individual and political determinations).
Checks and balances
Executive
The president exercises a check over Congress through their power to veto bills, but Congress may override any veto (excluding the so-called "
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. The
Vice President
A vice president, also director in British English, is an officer in government or business who is below the president (chief executive officer) in rank. It can also refer to executive vice presidents, signifying that the vice president is on ...
serves as president of the Senate, but they may only vote to break a tie.
The president, as noted above, appoints judges with the Senate's advice and consent. They 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 not mandated to carry out the orders of the Supreme Court. The Supreme Court does not have any enforcement power; the enforcement power lies solely with the executive branch. Thus, the executive branch can place a check on the Supreme Court through refusal to execute the orders of the court however the prestige of the Court makes that incredibly difficult to do.
The president is the civilian Commander in Chief of the Army and Navy of the United States. They have the authority to command them to take appropriate military action in the event of a sudden crisis.
[''Campbell v. Clinton'', 203 F.3d 19 (D.C. Cir. 2000)] However, only the Congress is explicitly granted the power to declare war per se, as well as to raise, fund and maintain the armed forces. Congress also has the duty and authority to prescribe the laws and regulations under which the armed forces operate, such as the
Uniform Code of Military Justice
The Uniform Code of Military Justice (UCMJ, 10 U.S.C. §§ 801–946 is the foundation of military law in the United States. It was established by the United States Congress in accordance with the authority given by the United States Constitutio ...
, and requires that all
Generals
A general officer is an officer of high rank in the armies, and in some nations' air forces, space forces, and marines or naval infantry.
In some usages the term "general officer" refers to a rank above colonel."general, adj. and n.". OED O ...
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
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
. This concept is not written into the Constitution, but was envisioned by many of the Constitution's Framers (for example, ''
The Federalist Papers
''The Federalist Papers'' is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the collective pseudonym "Publius" to promote the ratification of the Constitution of the United States. The c ...
'' mention it). The Supreme Court established a precedent for judicial review in ''
Marbury v. Madison
''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes t ...
''. There were protests by some at this decision, born 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
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of ...
, 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.
McCulloch v. Maryland, decided in 1819, established two important principles. One of which explains that states cannot make actions to impede on valid constitutional exercises of power by the federal government. The other explains that Congress has the implied powers to implement the express powers written in the Constitution to create a functional national government. All three branches of the US government have certain powers and those powers relate to the other branches of government. One of these powers is called the express powers. These powers are expressly given, in the Constitution, to each branch of government. Another power is the implied powers. These powers are those that are necessary to perform expressed powers. There are also inherent and concurrent powers. Inherent powers are those that are not found in the Constitution yet the different branches of government can still exercise them. Concurrent powers are those that are given to both state and federal governments. There are also powers that are not lined out in the Constitution that are given to the federal government. These powers are then given to the states in a system called federalism.
Congress is one of the branches of government so it has a lot of powers of its own that it uses to pass laws and establish regulations. These include express, implied, and concurrent powers. It uses its express powers to regulate bankruptcies, business between states and other nations, the armed forces, and the National Guard or militia. They also establish all laws necessary and proper for carrying out other powers. In addition to this Congress makes laws for naturalization. Implied powers are used to keep the regulation of taxes, the draft, immigration, protection of those with disabilities, minimum wage, and outlaw discrimination. Congress's inherent powers are used to control national borders, deal with foreign affairs, acquire new territories, defend the state from revolution, and decide the exclusion or establishment of aliens. Concurrent powers makes it so that both federal and state governments can create laws, deal with environmental protection, maintain national parks and prisons, and provide a police force.
The judicial branch of government holds powers as well. They have the ability to use express and concurrent powers to make laws and establish regulations. They use express powers to interpret laws and perform judicial review. Implied powers are used by this branch to declare laws that were previously passed by a lower court unconstitutional. They can also use express powers to declare laws that are in the process of being passed unconstitutional. Concurrent powers are used to make it so that state courts can conduct trials and interpret laws without the approval of federal courts and federal courts can hear appeals form lower state courts.
The executive branch also has powers of its own that they use to make laws and establish regulations. The powers that are used in this branch are express, implied, and inherent. The President uses express powers to approve and veto bills and to make treaties as well. The President is constitutionally obligated to make sure that laws are faithfully executed and uses their powers to do just this. He uses implied powers to issue executive orders and enter into treaties with foreign nations. The executive branch uses inherent powers to establish executive privilege, which means that they can enforce statutes and laws already passed by Congress. They can also enforce the Constitution and treaties that were previously made by other branches of government.
The system of checks and balances makes it so that no one branch of government has more power than another and cannot overthrow another. It creates a balance of power that is necessary for a government to function, if it is to function well. This, in most situations, makes it so that each branch is held to a certain standard of conduct. If a branch of the government thinks that what another branch is doing is unconstitutional, they can “call them out” so to say. Each branch is able to look at the other branches wrongdoing and change it to meet the needs of the people whom they serve. Humans as a whole have a history of abusing positions of power but the system of checks and balances makes it so much more difficult to do so. Also, as there is more than one person running each branch gives room for debate and discussion before decisions are made within a single branch. Even so, some laws have been made and then retracted because they were an abuse of the power given to that particular branch. The people that created these laws had been serving a selfish agenda when forming these laws instead of looking out for the welfare of those people that they were supposed to be protecting by making certain laws. While this is a horrible scenario, it does happen. That does not mean that it cannot be fixed though. Indeed, it can be, by another branch of government stepping up to right the wrongs that had been done.
The federal government is fully capable to intervene in affairs of Native Americans on reservations to some extent. Their ability to create and enforce treaties makes it so that they can interact with the Native Americans and build a treaty that works for both parties and make reservations for the Native Americans to live on and make it so that the people that would live on the reservation not be interrupted by the outside world and be able to live their lives as they please. This responsibility also falls on to the states as well. This happens because the federal government is the one that creates the treaties but the reservations are then put in the jurisdiction of the states. The states are then responsible for maintaining the relationships with the Native Americans on those reservations and to honor the treaties that were previously made by the federal government.
Equality of the branches
The Constitution does not explicitly indicate the pre-eminence of any particular branch of government. However,
James Madison
James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for h ...
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 claim that the judiciary has historically been the weakest of the three branches. In fact, its power to exercise judicial review—its sole meaningful check on the other two branches—is not explicitly granted by the
U.S Constitution. The
U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
exercised its power to strike down congressional acts as unconstitutional only twice prior to the
Civil War
A civil war or intrastate war is a war between organized groups within the same state (or country).
The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change government policies ...
: in ''
Marbury v. Madison
''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes t ...
'' (1803) and ''
Dred Scott v. Sandford
''Dred Scott v. Sandford'', 60 U.S. (19 How.) 393 (1857), was a landmark decision of the United States Supreme Court that held the U.S. Constitution did not extend American citizenship to people of black African descent, enslaved or free; th ...
'' (1857). The Supreme Court has since then made more extensive use of judicial review.
Throughout America's history dominance of one of the three branches has essentially been a see-saw struggle between Congress and the president. Both have had periods of great power and weakness such as immediately after the
Civil War
A civil war or intrastate war is a war between organized groups within the same state (or country).
The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change government policies ...
when republicans had a majority in Congress and were able to pass major legislation and shoot down most of the president's vetoes. They also passed acts to essentially make the president subordinate to Congress, such as the
Tenure of Office Act. Johnson's later impeachment also cost the presidency much political power. However the president has also exercised greater power largely during the 20th century.
Both Roosevelts greatly expanded the powers of the president and wielded great power during their terms.
The first six presidents of the United States did not make extensive use of the veto power:
George Washington
George Washington (February 22, 1732, 1799) was an American military officer, statesman, and Founding Father who served as the first president of the United States from 1789 to 1797. Appointed by the Continental Congress as commander of ...
only vetoed two bills,
James Monroe
James Monroe ( ; April 28, 1758July 4, 1831) was an American statesman, lawyer, diplomat, and Founding Father who served as the fifth president of the United States from 1817 to 1825. A member of the Democratic-Republican Party, Monroe was ...
one, and
John Adams
John Adams (October 30, 1735 – July 4, 1826) was an American statesman, attorney, diplomat, writer, and Founding Father who served as the second president of the United States from 1797 to 1801. Before his presidency, he was a leader of t ...
,
Thomas Jefferson
Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Father who served as the third president of the United States from 1801 to 1809. He was previously the natio ...
and
John Quincy Adams
John Quincy Adams (; July 11, 1767 – February 23, 1848) was an American statesman, diplomat, lawyer, and diarist who served as the sixth president of the United States, from 1825 to 1829. He previously served as the eighth United States ...
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
Andrew Jackson (March 15, 1767 – June 8, 1845) was an American lawyer, planter, general, and statesman who served as the seventh president of the United States from 1829 to 1837. Before being elected to the presidency, he gained fame as ...
, the seventh President, who was the first to use the veto as a political weapon. During his two terms in office, he vetoed 12 bills—more than all of his predecessors combined. Furthermore, he defied the Supreme Court in enforcing the policy of ethnically cleansing Native American tribes ("Indian Removal"); he stated (perhaps apocryphally), "
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, a Democrat, vetoed several
Reconstruction
Reconstruction may refer to:
Politics, history, and sociology
*Reconstruction (law), the transfer of a company's (or several companies') business to a new company
*'' Perestroika'' (Russian for "reconstruction"), a late 20th century Soviet Unio ...
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.
![Anders Leonard Zorn - Grover Cleveland - Google Art Project](https://upload.wikimedia.org/wikipedia/commons/6/66/Anders_Leonard_Zorn_-_Grover_Cleveland_-_Google_Art_Project.jpg)
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
A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister i ...
.
Grover Cleveland
Stephen Grover Cleveland (March 18, 1837June 24, 1908) was an American lawyer and politician who served as the 22nd and 24th president of the United States from 1885 to 1889 and from 1893 to 1897. Cleveland is the only president in American ...
, the first Democratic President following Johnson, attempted to restore the power of his office. During his first term, he vetoed over 400 bills—twice as many bills as his 21 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. Overall, this meant that Cleveland's Administration marked the end of presidential subordination.
Several 20th-century presidents have attempted to greatly expand the power of the presidency.
Theodore Roosevelt
Theodore Roosevelt Jr. ( ; October 27, 1858 – January 6, 1919), often referred to as Teddy or by his initials, T. R., was an American politician, statesman, soldier, conservationist, naturalist, historian, and writer who served as the 26t ...
, 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
William Howard Taft (September 15, 1857March 8, 1930) was the 27th president of the United States (1909–1913) and the tenth chief justice of the United States (1921–1930), the only person to have held both offices. Taft was elected pr ...
.
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
''A.L.A. Schechter Poultry Corp. v. United States'', 295 U.S. 495 (1935), was a decision by the Supreme Court of the United States that invalidated regulations of the poultry industry according to the nondelegation doctrine and as an invalid use ...
'', 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
Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 to 1974. A member of the Republican Party, he previously served as a representative and senator from California and was ...
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
Executive privilege is the right of the president of the United States and other members of the executive branch to maintain confidential communications under certain circumstances within the executive branch and to resist some subpoenas and othe ...
" 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. This was also because of an ongoing criminal investigation into 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 18th and 19th centuries.
Views on separation of powers
Many
political scientists
This is a list of notable political scientists. See the list of political theorists for those who study political theory. See also political science.
A
* Robert Abelson - Yale University psychologist and political scientist with special int ...
believe that separation of powers is a decisive factor in what they see as a limited degree of
American exceptionalism
American exceptionalism is the belief that the United States is inherently different from other nations.
Peggy Noonan, an American political pundit, wrote in ''The Wall Street Journal'' that "America is not exceptional because it has long att ...
. In particular,
John W. 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 group
Advocacy groups, also known as interest groups, special interest groups, lobbying groups or pressure groups use various forms of advocacy in order to influence public opinion and ultimately policy. They play an important role in the developm ...
s 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.
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.
Many legislators hold the view that separation of powers means that powers are shared among different branches; 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—for example, in the regulation of attorneys and judges, and the establishment by Congress of rules for the conduct of federal courts, and by state legislatures for state courts. 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.
On the other side of this debate, many judges hold the view that separation of powers means that the Judiciary is independent and untouchable within the judicial sphere. In this view, separation of powers means that the Judiciary alone holds all powers relative to the judicial function and that the Legislative and Executive branches may not interfere in any aspect of the Judicial branch. An example of the second view at the state level is found in the Florida Supreme Court holding 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.
See also
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Constitution of the Roman Republic
The constitution of the Roman Republic was a set of uncodified norms and customs which, together with various written laws, guided the procedural governance of the Roman Republic. The constitution emerged from that of the Roman kingdom, evolve ...
*
Commander-in-Chief
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Fourth branch of government
In politics of the United States, the fourth branch of government is an unofficial term referring to groups or institutions perceived variously as influencing or acting in the stead of the three branches of the US federal government defined in the ...
*
Signing statement
A signing statement is a written pronouncement issued by the President of the United States upon the signing of a bill into law. They are usually printed along with the bill in ''United States Code Congressional and Administrative News'' (USCCAN). ...
*
The Imperial Presidency
''The Imperial Presidency'' is a nonfiction book by historian Arthur M. Schlesinger Jr. It was published in 1973 by Houghton Mifflin and reissued in 2004. The book details the history of the presidency of the United States from its conception ...
*
Unitary executive theory
The unitary executive theory is a theory of United States constitutional law which holds that the President of the United States possesses the power to control the entire federal executive branch. The doctrine is rooted in Article Two of the Un ...
References
Citations
Sources
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External links
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United States Constitution at
Wikisource
Wikisource is an online digital library of free-content textual sources on a wiki, operated by the Wikimedia Foundation. Wikisource is the name of the project as a whole and the name for each instance of that project (each instance usually re ...
{{DEFAULTSORT:Separation Of Powers Under The United States Constitution
United States constitutional law
Legal history of the United States
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...