Separation of powers (US government)

Under the US Constitution, the term "separation of powers" refers to the system by which the legislative, executive, and judicial branches of the government perform different functions and can restrain the other branches. Also called “shared powers,” it is the core principle of the checks and balances system developed by the founders of the US government with the goal of preventing autocratic rule. Because each branch of government can restrain the others, US politics tend to operate within a relatively narrow political spectrum near the center of public opinion.

Introduction

The framers of the US Constitution believed that a system of separation of powers was necessary to protect liberty. Although the idea can be traced to older schemes of mixed government, the delegates to the Constitutional Convention of 1787 were most familiar with Charles de Montesquieu’s Spirit of the Laws (1748). Although Montesquieu’s interpretation of English government, on which his book was based, was later shown to be incomplete, the principle he espoused was adopted at the Constitutional Convention.

Separation of powers is woven into the US Constitution in subtle and brilliant ways. Over the decades, many US Supreme Court decisions have operated to preserve and strengthen this system of separation of powers. As the head of the judicial branch of government, the Supreme Court is itself one of the major repositories of shared power. The other two branches are the executive branch, headed by the president, and the legislative branch, headed by Congress.

The broader structure of the US system is also intended to help prevent governmental excess, supplementing the formal constitutional separation of powers. The United States has a federal system in which the states retain and exercise significant power. The powers of the central government are listed in the Constitution, and at least in constitutional theory, powers not on the list may not be exercised. Elected officials serve staggered terms and have different constituencies.

Legislature

In its lawmaking functions, Congress is subject to two immediate constitutional requirements. The first of these is bicameralism. Any bill or resolution that is to have the force of law must be passed by both the Senate and the House of Representatives in identical form. This requirement alone establishes a heavy majoritarian bias, especially given that senators and representatives come from disparate constituencies.

The second requirement is presentment. Every bill must be presented to the president of the United States for approval. If the president signs the bill, it becomes law. If the president fails or refuses to act on it within ten days (Sundays excepted), it becomes a law without their signature unless Congress has already adjourned at the end of a session, in which case the bill is said to be “pocket vetoed” and does not become a law. The president may veto a bill by sending it back to Congress with a message giving the reasons for disapproval. In this case, the bill does not become law unless each house of Congress passes it again by a two-thirds vote. Given the usual distribution of party strength in a two-party system, it is rare for vetoes to be overturned. For example, although President George H. W. Bush faced Democratic majorities in both the House and the Senate, the necessary votes to reverse his vetoes could be mustered only once.

One of the most subtle and important limits on the powers of Congress is found in the appointments clause of article 2 of the US Constitution. This clause gives the president the power to “nominate, and by and with the advice and consent of the Senate, . . . appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments.” While the Senate must consent to Supreme Court appointments, Congress may not itself appoint any person who has executive powers. Therefore, it may not establish agencies that compete with the executive branch, which is headed by the president. The Supreme Court has firmly and consistently reaffirmed this exclusion of Congress from executive power in several cases, including Buckley v. Valeo (1976), which struck down a mixed presidential-congressional appointment scheme for members of the Federal Election Commission. Similarly, in Bowsher v. Synar (1986), the Supreme Court struck down a legislative scheme that gave budget-balancing powers to the comptroller general of the United States. The comptroller general, being a congressional officer rather than an officer of the United States, cannot exercise executive powers or functions.

Congress may not prevent the president from dismissing executive branch officers. Although Congress has made several attempts to establish this power, it was prevented from doing so by the Supreme Court in Myers v. United States (1926), in which Congress challenged the dismissal of a postmaster by President Woodrow Wilson.

The powers of Congress are also limited by the courts, for every statute must be interpreted when it is applied. Beyond normal judicial processes is the practice of judicial review, which is the process by which the judiciary, especially the Supreme Court, scrutinize laws to see if they are consistent with the Constitution. Although this power of the courts is not explicitly set out in the Constitution, they have exercised it ever since Marbury v. Madison (1803), in which the Supreme Court held that a section of the Judiciary Act of 1789 was “repugnant” to the Constitution because it seemed to give the court original jurisdiction beyond the grant of constitutional jurisdiction found in article 3. The justices reasoned that Congress could not change the Constitution by an ordinary legislative act because the Constitution expresses the will of the entire public, and the powers of Congress are given and limited by the Constitution. Moreover, the Constitution itself defines “the supreme law of the land” as “this Constitution and the laws made in pursuance thereof.” A law not in accordance with the Constitution is not part of the supreme law of the land and may not be enforced by the courts. After Marbury, the Supreme Court held dozens of federal laws unconstitutional, thus preventing Congress from exceeding its constitutional powers.

Executive Branch

Like Congress, the president is limited by the other branches of the government. Their official acts are subject to review for constitutionality by the courts, so that if the president or executive officers violate the Constitution or exceed their authority, their actions can be halted.

The Constitution contains a powerful two-edged phrase to define executive authority: The president is to “take care that the laws be faithfully executed.” They are given the power to execute the laws but must do so “faithfully,” which is to say in accordance with the will of Congress. The Supreme Court, in the landmark case Youngstown Sheet and Tube Co. v. Sawyer (1952), held that President Harry S Truman could not seize the nation’s steel mills in order to avert a national strike in the midst of the Korean War. Although President Truman had argued that the sum of the president’s executive and war powers provided constitutional justification for the seizure, the court decided that without statutory authorization, the president did not have this power. Truman released the mills.

Should a president fail to execute the laws faithfully, and if the political will exists, they can be impeached by the House of Representatives, tried before the Senate, and, if convicted, removed from office. This has proven to be a high bar to clear. In 1868, President Andrew Johnson became the first president to be impeached, but he was acquitted by the Senate. Similarly, Bill Clinton and Donald Trump were both impeached (the latter twice), but neither was convicted. There was strong bipartisan will to remove President Richard Nixon from office in 1974 following the Watergate scandal, but he resigned from office before he could be formally impeached.

The ordinary legislative powers of Congress also may serve as a powerful check on presidential power. Only Congress may appropriate money for governmental functions, and all federal agencies and bureaus are created and may be abolished by Congress. Statutory authority given the president may be modified or withdrawn whenever Congress wishes. Most presidential appointments require the consent of the Senate, as do treaties made with foreign powers. The war powers are similarly shared: Although the president is the commander in chief, it is Congress that declares war, raises and supports armies, and makes the rules for the governance of the armed forces. Although the presidency appears to be at the center of the political system, Congress actually lies at the center of the constitutional system. Simply put, Congress can get rid of the president, but not vice versa.

Judiciary

Federal judges serve for life, but they, like the president, may be removed by impeachment if they commit crimes. Between 1804 and 2010, Congress removed eight federal judges for such crimes as bribery, tax evasion, and perjury. Judges are appointed by the president with the advice and consent of the Senate; therefore, sitting judges have no control over the ideology of newer judicial appointees. Moreover, the entire judicial structure, except for the Supreme Court itself, is established by Congress and can be reorganized whenever Congress desires. Although the Supreme Court is established by the Constitution, Congress sets the size of the court and may decree the length and frequency of its sittings. In fact, Marbury was delayed for a year because Congress passed a law canceling the Supreme Court’s 1802 term. Congress also has the power to make “exceptions” to the appellate jurisdiction of the Supreme Court—that is, to take away its power to hear certain cases that have already been tried in lower courts. This power was exercised by Congress when, just after the Civil War, it took from the Supreme Court’s jurisdiction certain Reconstruction cases. The Supreme Court recognized and accepted this congressional power in Ex parte McCardle (1869).

The greatest limit on the power of the judiciary, however, is the cases and controversies rule. Courts may decide only issues that come before them in cases. If there is no case, there is no judicial power. Moreover, because prosecution is an executive function, it is the president and the attorney general who decide what cases to bring and what arguments to make. Consequently, courts are always responding rather than initiating. For this reason, Alexander Hamilton remarked in the Federalist No. 78 (1788) that the judiciary was “the least dangerous branch” of the government. However, over time, many observers have raised concerns about alleged increasing judicial activism and politicization of the courts potentially upsetting the separation of powers.

Constitutional decisions of the Supreme Court can also be reversed by constitutional amendment if there is enough public concern and political momentum. For example, the Reconstruction Amendments (Thirteenth, Fourteenth, and Fifteenth Amendments) collectively reversed the Court’s decision in Scott v. Sandford (1857), and the income tax amendment (Sixteenth Amendment) reversed Pollock v. Farmers’ Loan and Trust Co. (1895). Consitutional amendments have become increasingly uncommon, however, a fact that many scholars have linked to the entrenchment of the two-party system and deepening of political partisanship.

Bibliography

"Branches of the US Government." USA.gov, 6 Dec. 2023, www.usa.gov/branches-of-government. Accessed 14 Aug. 2024.

Corwin, Edward S. The “Higher Law” Background of American Constitutional Law. 1928. Indianapolis: Liberty Fund, 2008.

Goldwin, Robert A., and Art Kaufman, eds. Separation of Powers: Does It Still Work? Washington: Amer. Enterprise Inst. for Public Policy Research, 1986.

Hall, Kermit L., ed. The Least Dangerous Branch: Separation of Powers and Court-Packing. New York: Garland, 2000.

Hall, Kermit L., and Kevin T. McGuire, eds. The Judicial Branch. New York: Oxford UP, 2005. Insts. of Amer. Democracy.

Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers. Ed. Jim Miller. Mineola: Dover, 2014. Rpt. of The Federalist: A Collection of Essays, Written in Favour of the New Constitution, as Agreed Upon by the Federal Convention, September 17, 1787. 1788.

"Intro.7.2 Separation of Powers Under the Constitution." Constitution Annotated, US Congress, constitution.congress.gov/browse/essay/intro.7-2/ALDE‗00000031/. Accessed 14 Aug. 2024.

Pacelle, Richard L., Jr. The Role of the Supreme Court in American Politics: The Least Dangerous Branch? Boulder: Westview, 2002.

Powers, Stephen P., and Stanley Rothman. The Least Dangerous Branch? Consequences of Judicial Activism. Westport: Praeger, 2002.

Rodell, Fred. Nine Men: A Political History of the Supreme Court from 1790 to 1955. 1955. Littleton: Rothman, 1988.

Rosen, Jeffrey. The Most Democratic Branch: How the Courts Serve America. New York: Oxford UP, 2006.

Savage, David G. The Supreme Court and the Powers of the American Government. 2nd ed. Washington: CQ, 2009.

"Separation of Powers: An Overview." NCSL, 1 May 2021, www.ncsl.org/about-state-legislatures/separation-of-powers-an-overview. Accessed 14 Aug. 2024.

Shuman, Howard E. Politics and the Budget: The Struggle between the President and the Congress. 3rd ed. Englewood Cliffs: Prentice, 1992.