Division of the legislative, executive, and judicial functions of government

Division of the legislative, executive, and judicial functions of government among separate and independent bodies. Such a separation limits the possibility of arbitrary excesses by government, since the sanction of all three branches is required for the making, executing, and administering of laws. The concept received its first modern formulation in the work of Charles-Louis de Secondat, baron de La Brède et de Montesquieu, who declared it the best way to safeguard liberty; he influenced the framers of the Constitution of the United States, who in turn influenced the writers of 19th- and 20th-century constitutions.

In American discourse separation of powers is more a name than a description. None of the three branches (legislative, executive, or judicial) of the national government are clearly separate from one another. Congress, for example, has an impeachment club to check the others; the president's veto power is plainly legislative in nature. No wonder JamesMadison in The Federalist, no. 47, undertook to answer the Anti‐Federalist charge that “The several departments of power are [not separated but] blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.” Madison's answer was that Montesquieu—the “oracle” of separation—did not mean that “departments ought to have no partial agency in, or control over, the acts of each other.” He meant rather that “the whole power of one department [should not be] exercised by the same hands which possess the whole power of another department.” The merit of “blending,” according to Madison, was that, along with bicameralism and federalism, it produced a safety net of “checks and balances.”

A crucial problem is that split power inevitably entails split accountability. No wonder then that so many difficulties in American government spring ultimately from its divided power system. In contrast, the parliamentary system seeks safety in clear, direct lines of electoral accountability—and less in a mechanistic clash of sundered agencies of government. Concentrating power for effective action in a prime minister, it makes that person directly amenable to parliament while the latter is directly amenable to the electorate. This scheme largely eliminates what for Americans is a persistent quandary: which of several shells hide the peas of power and responsibility? That quandary partially accounts for the sense of frustration that is so widespread in the American electorate.

Historical Background

What was the evil that checks and balances were designed to cure? The founders presumably were haunted by monarchy and, in particular, George III. Perhaps, as some progressive historians insist, they feared the untutored masses. In this view the Constitution was foisted upon the country as an antidote against “the evils of democracy.” The prime purpose allegedly was to protect vested interests by such curbs upon the masses as checks and balances—especially judicial review—and a central government in which only the House of Representatives was to be popularly elected.

Madison suggested in The Federalist that what most moved the founders was neither monarchy nor the masses but human nature, as they understood it. In their view mankind is moved less by reason than by passion, less by benevolence than by self‐interest. As Alexander Hamilton put it: “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint” (Federalist, no. 15). Separated powers along with checks and balances are prominent among the several “interior” and “exterior” constraints described in The Federalist, nos. 10, 47, 51. It is crucial that these essays are concerned with checking both minority and majority“factions” that spring from self‐interest, whereas the progressives seem to have thought majorities could do no wrong.

But if majority as well as minority factions were to be constrained, how could government be expected to function efficiently? The answer must be that the founders favored inefficient government checked and balanced against itself because it seemed safer than the greater risk of tyranny in a more efficient system. The choice was relatively easy given the simple, static society of 1787 that required, by modern standards, very little government. Surely the founders might reasonably have supposed the modest needs of their day could be met by machinery that at best would work slowly and, perhaps, only when supported by a consensus of opinion so great as to neutralize the built‐in impediments. While the simple community the founders knew has long since passed away, their basic plan of government lives on.

Separation and the Party System

The need for coordination of the separated branches helps to explain the extraconstitutional rise of our political party system that began in President George Washington's administration. Former members of the Constitutional Convention moved into all branches of the new government. Indeed, the convention's Federalist values prevailed throughout the Washington administration and in the Supreme Court as well. That is why, despite checks and balances, Hamilton was able to achieve speedily his famous, if controversial, legislative program. The key to his success was a kind of embryonic one‐party system that bridged and neutralized checks and balances. The lesson was not lost on Thomas Jefferson. Recognizing that opposition from within was futile, he resigned from Washington's cabinet to build and lead an opposing party. What he achieved was an informal constitutional amendment that made political parties a vital element of American government.

Strong parties promote strong government because they cultivate cooperation at the expense of friction among the separated organs. Thus in the long view the history of American government seems a history of spasms. In weak party eras when the founders' system prevails, Congress and the president are apt to be at odds. In strong‐party eras the built‐in friction is ameliorated. Then there are apt to be vigorous legislative programs in response to accumulated problems. President Woodrow Wilson's crucial reforms were the fruit of the high tide of the progressive movement, which for a brief time reinvigorated both major parties (see Progressivism). Later the Great Depression gave Franklin D. Roosevelt the leverage to build a potent new Democratic party; a massive New Deal program followed. By the 1950s that party had lost its zest as had the Republican party much earlier. Even the bright new Kennedy administration was frustrated in Congress. Then the shock of the assassination along with huge Democratic congressional majorities—thanks to Barry Goldwater's unsuccessful 1964 campaign—enabled President Lyndon B. Johnson to push a major reform program through Congress. Given the Vietnam War, the period of harmony and vigorous legislative reform was brief. Then separation of powers produced another period of stagnation.

Those who like clear, logical lines of power and responsibility find all this at best discouraging. Others, perhaps more sensitive to mankind's long, unhappy experience with government, find that among the world's few free nations the United States does not suffer by comparison; that history portends enough congressional‐presidential cooperation to meet pressing needs; that the gaps between these periods of creative harmony are in fact periods of gestation; that checks and balances have not prevented, but only delayed, innovation—thus promoting substantial consensus behind public policy. Of course, almost any determined and not insignificant minority generally can erect multiple constitutional or extraconstitutional barriers to frustrate virtually any proposal it finds seriously objectionable.

Judicial Independence in a Check and Balance System

The Constitution contemplates both judicial independence and checks and balances. It follows that the judiciary, particularly the Supreme Court, is the most separated and least checked of all the branches of government. When, in Hammer v. Dagenhart (1918), for example, it held unconstitutional federal restraints on child labor no more was required than the concurrence of five of its own members. Nothing more was required when in Roe v. Wade (1973) it killed virtually all existing restraints on abortion. Yet to impose such edicts by legislation would require the approval of the Senate, the House of Representatives, and the president. A veto could be overriden only by a two‐thirds majority in both houses of Congress. Moreover, unlike the nine Supreme Court justices, the members of Congress and the president are accountable to the voters in an election, which for most of them would be less than two years away. If, notwithstanding all these checks and balances, the measures in question were adopted, they would face yet another hurdle, namely, judicial review.

Free of elections and fortified by tenure “during good behavior” with pay that may “not be diminished,” no Supreme Court justice has ever been removed from office by the impeachment process. Indeed, impeachment charges have been brought against a Supreme Court judge only once—almost two hundred years ago. That case against Justice SamuelChase seems to have established the principle that impeachment lies only for criminal conduct, not as reprisal against judicial points of view.

Supreme Court decisions have been overridden by constitutional amendment in only four instances (see Reversals of Court Decisions by Amendment). The Eleventh, Fourteenth, Sixteenth, and Twenty‐sixth Amendments nullify, respectively, Chisholm v. Georgia (1793), Dred Scott v. Sandford (1857), Pollock v. Farmers' Loan & Trust Co. (1895), and Oregon v.Mitchell (1970). Numerous other proposed amendments aimed at court decisions relating, for example, to school busing, school prayers, equal rights for women, and abortion, have failed. In the end, of course, judges determine the meaning of amendments as they do with respect to other parts of the Constitution. This is to say the “checkee” determines the meaning and application—and thus the impact—of the check!

If these court‐control devices may properly be called checks and balances, they have been rarely used. Yet the judiciary does not live in a political vacuum. It may not follow the election returns, but it is not entirely unresponsive to the social forces that determine election results. The strength or weakness of the political party system in any given era seems to affect the functioning not only of the president and Congress but of the Supreme Court as well. In eras when a strong party coordinates the efforts of the two political branches there seems to be little room for judicial activism. Surely it is not by chance that each of our three outbursts of wholesale national policymaking by judges came when the party system was at peculiarly low ebb. Perhaps judges feel duty‐bound to intervene when other branches falter, or maybe only then are they willing to risk wholesale intrusion upon the political processes. Large‐scale court intrusion upon national policy did not begin until the Kansas‐Nebraska Act (1854) had wrecked both major political parties. The disrupting issue was whether slavery should be allowed in the new territories. Congress being deadlocked (read “checked and balanced”), the Supreme Court undertook in Dred Scott v. Sandford (1857) to settle the matter. The result was a moral and legal disaster.

With the lingering death of the old sectional party system the Supreme Court again became a major policy maker. In a matter of months it killed the federal income tax in Pollock v. Farmers' Loan & Trust Co. (1895), emasculated the Sherman Antitrust Act in United States v. E. C. Knight Co. (1895) and the Interstate Commerce Commission in ICC v. Alabama Midland Railway Co. (1897). So too it sanctioned the labor *injunction in In re Debs (1895) along with racial segregation in Plessy v. Ferguson (1896). Later it struck down two federal efforts to restrict child labor as well as a host of state regulatory measures symbolized by Lochner v. New York (1905). With a brief respite in the Progressive Era this economic activism continued until 1937, devastating virtually the whole early New Deal legislative program.

The aggressive role that judges had played in the era of moribund sectional politics could not be maintained in the face of a potent new urban party system led by Franklin Roosevelt. The “old” Supreme Court surrendered early in 1937. In short order the New Deal Court repudiated most of the activist innovations of the years from 1890 through 1936.

The decisions in Mapp v. Ohio (1961) and Baker v. Carr (1962) seem to mark the beginning of a new judicial era. By the late 1960s Americans seem to have lost their capacity for self‐government. Reasoned argument, compromise, and accommodation were increasingly replaced by polarization and violence in word and deed. There was no party coalition in command of a sufficiently stable majority to advance coherent policies. The decline of Franklin Roosevelt's dynamic urban party system seems to have invited another outburst of judicial activism—supposedly led by Chief Justice Earl Warren.

Judicial Enforcement of Separation

By virtue of their power of judicial review, judges have the last word short of constitutional amendment on the allocation of authority among the three branches of the federal government. It is worth special notice that this includes power to set the bounds of their own authority—as well as their own immunity from outside checks and balances. This power, a part of the classic problem of judicial review, reinforces what was suggested above on other grounds; namely, that the judiciary is at best only marginally within the checks‐and‐balances system. Virtually immune itself, it has enormous checking power with respect to all other organs of American government. Its decisions define the nature of congressional‐presidential separation.

Scope of Presidential Authority

The Supreme Court ruled in United States v. Curtiss‐Wright Export Corporation (1936) that the “investment of the Federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution [rather these powers] vested in the Federal government as a necessary concomitant of nationality” (p. 318). In a word, they are extraconstitutional in origin. Moreover, these “inherent” and “plenary” powers belong to “the President as the sole organ of the federal government in the field of international relations” (see Inherent Powers; Presidential Emergency Powers). On that basis the Supreme Court upheld a quasi‐legislative presidential decree that forbade the sale in this country of war materials to those engaged in armed conflict in the Chaco. The purpose was to promote peace between Bolivia and Paraguay. The Curtiss‐Wright decision has never been judicially qualified.

The Constitution authorizes the president to make treaties, subject to ratification by a two‐thirds vote of the Senate. May the chief executive by virtue of his inherent foreign affairs power bypass the senatorial concurrence requirement by means of executive agreement? In United States v. Belmont (1937), affirming the Litvinov Agreement, the Supreme Court responded affirmatively though the Court's opinion rests in part on the “express” power of the president to recognize foreign nations. In the Litvinov accord President Roosevelt recognized the Soviet Union and accepted in satisfaction of Soviet debts property located in the United States that the Soviet Union had confiscated from Russian citizens. Presidential policy prevailed without approval of the Senate, and despite the law of the state in which the confiscated property was located. Thus, like a treaty, the Litvinov Agreement became the “supreme law of the land” under Article VI of the Constitution. Decisions of this type, especially Missouri v. Holland (1920), led eventually to the proposedBricker Amendment (1954). Failing by only one vote in the Senate, the Bricker Amendment would have provided: “An international agreement other than a treaty shall become effective as internal law in the United States only by an act of Congress.” While this proposed amendment was not adopted, the forces behind it seem to have softened the Court's language, though not its decisions. In Dames & Moore v. Regan (1981), the Court upheld President Jimmy Carter's executive agreement with Iran concerning the American hostages and private claims against Iranian assets in this country. Emphasizing the “narrowness” of its decision, confined to a claims settlement, the Court took care to observe this was not a situation “in which Congress has in some way resisted the exercise of Presidential authority” (p. 688).

Goldwater v. Carter (1979) raised the issue whether the president may terminate a treaty without the consent of Congress or the Senate. A court of appeals en banc decided in favor of President Carter, who, in conjunction with the recognition of China, had abrogated a treaty with Taiwan. The Supreme Court dismissed the case without decision on the merits. The net effect was a victory for presidential authority.

The Constitution authorizes Congress “to declare War,” and makes the president commander in chief of the armed forces (see War Powers). Moreover, the president plays, and was intended to play, a major role in the conduct of *foreign affairs. The classic and constant problem is to what extent, if any, may the presidential commander in chief properly use the military forces without a congressional declaration of war? This problem came before the Supreme Court when President Abraham Lincoln instituted a naval blockade of the southern ports—clearly an act of war though Congress had not declared war. In the Prize Cases (1863), the justices upheld the president's action in the face of objections by those whose ships had been seized for trying to run the blockade. Four justices dissented powerfully. The problem of warlike measures in undeclared “wars,” including the sending of draftees into combat, came before the judiciary repeatedly with respect to the Vietnam conflict. Ever since the Prize Cases the Supreme Court has left such issues to be resolved by Congress, the president, and the electorate. Obviously Congress acquiesced in the Vietnam and Civil wars in the sense that it provided the troops and money without which war would have been impossible. Moreover, Congress did not do with respect to either of these wars what it eventually did with respect to the “invasion” of Cambodia: cut off funding.

To avert an industrywide strike during the Korean conflict, President Harry S. Truman seized the privately owned steel mills. Congress had provided quite different ways for dealing with such crises. Government lawyers argued that the president had acted within his constitutional powers as chief executive and commander in chief. In Youngstown Sheet & Tube Co. v. Sawyer (1952), Justice Hugo Black wrote a brief “opinion of the Court.” The seizure, he said, could not be justified as an exercise of military power. Then, noting Congress's refusal to authorize what the president had done, the justice found it forbidden by separation of powers doctrine: “In the framework of our constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. … And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute” (p. 587). All of the other judges found the problem more complex than did Justice Black. Even the five concurring judges wrote separate opinions. The trouble was a premise that Justice Black ignored: both the Constitution and history reject strictly separated powers. While there are three quite distinct branches, each of them has some traces of legislative, executive, and judicial power. Moreover, what remains of the separation of powers has been qualified by history. The three dissenters noted an impressive array of presidential lawmaking. Without waiting for Congress, George Washington proclaimed neutrality; Thomas Jefferson bought Louisiana; James Monroe issued his famous doctrine; Andrew Jackson removed federal deposits from the Bank of the United States; Lincoln emancipated the Confederacy slaves. This pattern continued through Roosevelt's Bank Holiday proclamation and his numerous war‐effort edicts. The five justices who concurred in Black's judgment quite clearly could not accept the part of his opinion that would outlaw all presidential lawmaking and a large part of American history as well.

Congress vis‐à‐vis the Executive

A corollary of the separation of powers doctrine holds that Congress may not delegate legislative power to the executive branch. Yet the Supreme Court in J. W. Hampton v. United States (1928) upheld an act of Congress giving the president authority to raise or lower tariffs within prescribed limits when he found such revision necessary to equalize the costs of production in the United States and other nations. This authorization was sustained on the ground that “If Congress shall lay down by legislative act an intelligible principle to which the [“delegee”] is directed to conform, such legislative action is not a forbidden delegation of legislative power” (p. 409).

Delegation of Power.

Congress has often made such grants of authority to various executive and administrative agencies. Usually these grants are extremely broad and the guidelines so vague as to be essentially meaningless. For example, the Interstate Commerce Commission is authorized to order “just and reasonable” railroad freight rates, and the Federal Communications Commission to license radio stations in accordance with “public convenience, interest or necessity.” Similarly Congress provided for the renegotiation of World War II procurement contracts and authorized the recovery from contractors of profits that administrative officials found “excessive.” Save two instances, Panama Refining Co. v. Ryan (1935) andSchechter Poultry Corp. v. United States (1935), no congressional delegation of lawmaking power has been held invalid no matter how vague the purported guidelines. The two exceptions perhaps are best explained as part of the old laissez‐faire judicial activism that virtually destroyed the early New Deal (see Laissez‐Faire Constitutionalism). In effect, it is now enough both in law and practice for Congress merely to identify problems and leave solutions to administrative specialists. It is worth noticing that in Mistretta v. United States (1989) the Supreme Court found no improper delegation and no separation of powers problems in an act of Congress that gave an independent agency within the judicial branch the power to promulgate mandatory sentencing guidelines for federal courts. 

An open‐ended delegation may be an irresponsible passing of the buck. Sometimes, however, legislators resort to abstract public interest guides simply because they cannot foresee many of the mundane problems that necessarily attend implementation of their general policy objectives. Hence, the contemporary judicial approach is not to invalidate statutory delegations of power but to assure that they are accompanied by adequate controls. Many such controls are built into the administrative process itself; our concern here is presidential and congressional oversight. Until the Chadha case (1983; see below), Congress often retained a “legislative veto” with respect to the use by administrative agencies of delegated power.

Administrative Personnel.

At issue in Myers v. United States (1926) was an act of Congress providing that postmasters could be appointed and removed by the president with Senate consent (see Appointment and Removal Power). The Supreme Court held that the requirement of senatorial consent for removal was inconsistent with the constitutional grant of “the executive power” to the president and also with his duty to “take care that the laws be faithfully executed” (pp. 163–164). Without the power to control via unfettered removal authority the president would not be the chief executive. 

The presidential victory in Myers was soon qualified. Humphrey's Executor v. United States (1935) arose under a statute providing that members of the Federal Trade Commission could be removed from their seven‐year terms of office only “for inefficiency, neglect of duty, or malfeasance in office.” President Roosevelt sought to remove Humphrey from office not on any of the statutory grounds but on the basis of Myers. A unanimous Court found the removal invalid. The Court distinguished between officials who perform purely executive functions as in Myers and those who perform quasi‐judicial functions as in Humphrey. This is a classic example of promoting freedom through governmental inefficiency that springs from checks and balances. Mr. Humphrey was a holdover from the Hoover administration, which the electorate had rejected in 1932 by electing Roosevelt. Yet the Humphrey case means that a new administration must live with a person in high office whose policy views are clearly at odds with those of the new regime. Securing the independence of the regulatory commissions, Humphrey provided the foundation for a “headless fourth branch of government.” 

Just as the Supreme Court in Myers held Congress cannot limit the president's authority to remove from office those who perform “purely” executive functions, in Buckley v. Valeo (1976) the justices held Congress cannot appoint such officers. Nor, according to Bowsher v. Synar (1986), can Congress remove them.

Policy Differences.

Recognizing that it has been delegating away dangerously broad powers, Congress since 1932 had frequently reserved for one or both houses power to “veto” what are deemed improper or unwise exercises of delegated authority (see Legislative Veto). The Supreme Court in Immigration and Naturalization Service v. Chadha (1983) held invalid a one‐house veto of a deportation exemption granted (pursuant to delegated authority) by the INS. Such a veto, the Supreme Court said, was legislation that only Congress, subject to the president's veto, can enact. True to eighteenth‐century dogma, the Court declared the “fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of the government, standing alone, will not save it, if it is contrary to the Constitution” (p. 944). In U.S. Senate v. Federal Trade Commission (1983), the justices extended the Chadha principle to a veto that is effective upon approval by both houses of Congress. Of course, Congress may influence the independent regulatory commissions through its investigation and its budget powers, but this is quite different from day‐to‐day oversight. 

The Ethics in Government Act of 1978 provided for the appointment of “independent counsel” to investigate and, when appropriate, prosecute certain high‐ranking officials for violations of federal criminal laws. The purpose of the measure was to bypass a regular function of the Department of Justice lest inter alia an administration find itself in the role of investigating and prosecuting itself. In Morrison v. Olson (1988), the Court held that Congress had not violated separation of powers principles because under the act the president can at any time remove from office an “independent counsel”—but only for “good cause.” In the Supreme Court's view the latter proviso did not substantially impede the president's law‐enforcing function. Unless the justices are prepared to undercut Myers, it seems likely they will not find much of an impediment in the “good cause” limitation. 

Since Jefferson's day presidents have used military force from time to time without formal declarations of war. Jefferson fought pirates in Tripoli; Lincoln battled the Confederacy; Truman fought the North Koreans; Kennedy, Johnson, and Richard M. Nixon used the military in Vietnam. Widely felt dissatisfaction with the Vietnam venture led to congressional adoption—over President Nixon's veto—of the War Powers Act of 1973. Its purpose was to “insure that the collective judgment of both Congress and the President will apply to the introduction of United States armed forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” To achieve this objective the resolution requires consultation between Congress and the president before any military venture. It requires the president to report to Congress within forty‐eight hours any such action that he has undertaken and the reasons there for. It also compels him to end any military involvement after sixty (or ninety) days unless Congress approves or is unable to meet. Moreover the president must “remove” armed forces engaged in hostilities outside American territory and possessions if Congress so directs by a concurrent resolution that is not subject to a presidential veto. 

At least three presidents since 1973 have insisted the resolution violates long‐settled traditions as well as presidential authority granted by the Constitution. Other commentators have been critical because in their view Congress has given its advance blessing to any sixty‐ or ninety‐day military venture by the president. Another difficulty with the War Powers Act is the subsequent Chadha restraint on legislative vetoes. 

One cannot ascertain to what extent, if any, the War Powers Act has in fact restrained presidential action. Presidents Gerald Ford, Carter, and Ronald Reagan reported seventeen military ventures to Congress—sometimes not strictly within the forty‐eight hour deadline. Among those reported late was President Carter's effort to rescue the hostages in Iran and President Reagan's involvement in Grenada. Congress has never rebuked a president for violating the War Powers Act nor has the judiciary found that it raises any justiciable as distinct from political questions. However, differences between President Reagan and Congress with respect to what started as a peacekeeping mission in Lebanon led to a compromise whereby the marines would be withdrawn within eighteen months.

Summary and Conclusion

America's peculiar institution of judicial review gives courts enormous supervisory power with respect to the other branches of government. It also permits courts to define whatever powers of self‐defense the other branches have against the judiciary. The upshot is that separation of powers means largely what the Supreme Court says it means.

As a matter of history the political branches have rarely tried to use their formal weapons (impeachment, constitutional amendment, and jurisdiction control) against the Supreme Court. Thus, political parties seem—when robust—the most effective, if indirect, check against otherwise independent judges.

Few Supreme Court decisions confine the presidency. Humphrey was a severe and perhaps debatable blow. The Steel Seizure Case recognizes significant presidential lawmaking power provided it does not collide with prior congressional measures. While United States v. Nixon (1974) was an unmitigated defeat for President Nixon, it was a victory for the presidency because the Court recognized a need for confidentiality in the conduct of presidential affairs. In many other cases, whether relating to foreign or domestic matters, the Supreme Court has either withheld its hand or supported the president in the face of separation of powers challenges. This judicial leniency along with the habitual willingness of Congress to delegate to the executive branch vast discretionary power helps to explain the rise since the Great Depression of what Arthur Schlesinger, Jr., calls the “imperial presidency.” Expansive delegation may be largely a symptom.

As though recognizing its own carelessness with respect to delegation, Congress has provided repeatedly for that after‐the‐fact remedy called the legislative veto. The Chadha ruling ended that approach, which may have been less important as a remedy than as a recognition by Congress that it had been giving away too much authority and had not been performing adequately. Such a confession seems implicit in the Gramm‐Rudman Act, in which Congress sought by a kind of automatic pilot device to make good its own lack of discipline with respect to the budget. The Chadha decision and Congress's farcical maneuvering to avoid Gramm‐Rudman strictures may yet bring real reform.

In his famous Myers dissent Justice Louis D. *Brandeis said: “The doctrine of the separation of powers was adopted by the convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three department, to save the people from autocracy” (p. 293). This is a classic expression of the eighteenth‐century hope that freedom could be secured by calculated inefficiency in government. A more modern hope is that freedom would be better served with more efficiency and more democratic accountability. We are still haunted by an ancient riddle: How far can we build up effective government before it topples over into despotism? How much inefficiency can we afford without slipping into disaster?
See also Delegation of Powers; Judicial Power and Jurisdiction; Judicial Review; Party System; Political Parties.

Bibliography

• Benjamin Ginsberg and Martin Shefter, Politics by Other Means (1990).
• Louis Henkin, Foreign Affairs and the Constitution (1972).
• Philip B. Kurland, Watergate and the Constitution (1978).
• Theodore Lowi, The End of Liberalism (1980).
• M. J. C. Vile, Constitutionalism and the Separation of Powers (1967).
• Martin Wattenberg, The Decline of American Political Parties (1986).
• Christopher Wolfe, The Rise of Modern Judicial Review (1986).
• Gordon Wood, The Creation of the American Republic (1969)

— Wallace Mendelson

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Oxford Dictionary of Politics: separation of powers

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The doctrine that political power should be divided among several bodies as a precaution against tyranny. Opposed to absolute sovereignty of the Crown, Parliament, or any other body.

Separation of powers was a leading idea in medieval Europe under the name of the ‘two swords’. Most thinkers agreed that power should be shared between the State and the Church. But no convincing argument was produced for the supremacy of one over the other. Those who argued that the State was superior to the Church faced the fact that divine authority was supposed to be conferred on kings at their coronation, and that religious authorities claimed the power to excommunicate kings (as happened to King John of England). Those who argued that the Church was superior to the State had to explain away Jesus's command to ‘Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's’. Thus there was de facto separation of powers in medieval Europe.

The idea revived in the seventeenth century in response to renewed claims of divine right and absolute sovereignty (see Filmer; Hobbes). Locke distinguished the executive, legislative, and federative (relating to foreign affairs) powers, although he did not intend them to be regarded as separate. He had in mind the British arrangement where the executive was (at least partly) drawn from the legislature and (at least in relation to finance) answerable to it. Montesquieu developed this into a full-blown theory of the separation of the legislative, executive, and judicial powers (based, it is often said, on a misreading of contemporary British politics). From here it passed to the US Constitution and its justification in the Federalist Papers. The checks and balances of US government involve both the separation of powers among the executive (the Presidency), the legislature (the two houses of Congress, themselves arranged to check and balance one another), and the judiciary (the federal courts), and separation between the federal government and the states.

Defenders of separation of powers insist that it is needed against tyranny, including the tyranny of the majority. Its opponents argue that sovereignty must lie somewhere, and that it is better, and arguably more democratic, to ensure that it always lies with the same body (such as Parliament).

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Oxford Guide to the US Government: separation of powers

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Suspicious of any concentration of power, the framers of the Constitution distributed power among the three branches of the federal government: the legislative, the executive, and the judicial. The legislative branch (Congress) has the power, according to Article 1 of the Constitution, to make certain kinds of laws. In Article 2, the Constitution says that the executive branch (headed by the President) has the power to enforce or carry out laws. The judicial branch (headed by the Supreme Court) is established in Article 3 of the Constitution to interpret and apply the law in federal court cases.

Further, legislative power is divided between the two houses of Congress: the Senate and the House of Representatives. Both houses must pass a bill for it to become law.

The Constitution, however, also implies many overlapping powers, which each of the branches have claimed. Presidents have asserted the right to make foreign policy exclusively, without consulting Congress. Congress has attempted to “micromanage” the executive branch by enacting legislation that specifically defines how these laws must be administered. The courts have been accused of “legislating” by actively interpreting legislation in ways that Congress had not intended.

Even so, the separation of powers among the three branches of the federal government is the fundamental constitutional means for achieving limited government and protecting the people against abuses of power. Limited government means that officials cannot act arbitrarily. Rather, they are bound by the higher law of the Constitution, which guides and limits their use of power in order to protect the liberties of the people and prevent tyranny. James Madison summarized this view of the need for separation of powers in The Federalist No. 47: - “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elected, may justly be pronounced the very definition of tyranny.”

In The Federalist No. 48, Madison emphasized that the separation of powers in the U.S. Constitution is complemented by a system of checks and balances, whereby one branch can block or check an action of another branch in order to maintain a balance of power in the government. Madison said that unless the separate branches of government “be so far connected and blended [balanced] as to give each a constitutional control [check] over the others the degree of separation … essential to a free government can never in practice be duly maintained.”

In military policy, for instance, the President serves as commander in chief of the armed forces, but Congress is authorized to raise and fund an army and navy and votes to declare war. In foreign policy, Presidents appoint U.S. ambassadors and negotiate treaties, but the Senate confirms or rejects those nominations and treaties. Both the House and Senate vote to fund foreign aid and other U.S. diplomatic efforts. In determining fiscal policy, the President submits a budget for the federal government to Congress, but Congress enacts its own version of the budget, appropriates all money, and raises revenue to pay for federal spending. The President may veto, or reject, any revenue and appropriation bill, but by a two-thirds vote of both houses Congress can override that veto.

Judicial review

The Supreme Court uses the power of judicial review to check the executive and legislative branches of government and to maintain the separation of powers. This power enables the Court to declare acts of the executive or legislative branches unconstitutional. Thus, the Court can declare null and void actions of the other branches that exceed or contradict their powers as expressed in the Constitution.

The Court established its power of judicial review in the case of Marbury v. Madison (1803). Since that time, the Court has exercised this power to declare more than 150 acts of Congress and the President unconstitutional. In Youngstown Sheet & Tube Co. v. Sawyer (1952), for example, the Court ruled that President Harry Truman's use of an executive order to temporarily take control of privately owned steel mills was unconstitutional. Writing for the Court, Justice Hugo Black explained: “In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.”

In Clinton v. City of New York (1998) the Court struck down the Line Item Veto Act, which Congress had passed and President Bill Clinton had signed in 1996. This federal statute gave the president the power to “cancel” an item in an appropriations bill passed by Congress and of which he otherwise approved. Clinton's use of the line-item veto was challenged by some members of Congress who protested when he used it to veto their projects. The Court ruled that the law at issue violated Article 1, Section 7, of the Constitution. The principle of the separation of powers was maintained against an act to extend the chief executive's power into an area of government reserved by the Constitution for Congress.

As the preceding examples indicate, each branch of the government has some influence over the actions of the others, but no branch can exercise its powers without cooperation from the others. Each branch has some say in the work of the others as a way to check and limit their powers, but no branch may encroach unconstitutionally upon the domains of the other branches. In this system of separation of powers, with its checks and balances, no branch of the government can accumulate too much power. But each branch, and the government generally, is supposed to have enough power to do what the people expect of it. So the government is supposed to be both limited and strong: strong enough to be effective in maintaining order, stability, and security for the people, but not strong enough to threaten their liberty.

Justice Louis D. Brandeis nicely summed up the founders' purposes and reasons for separation of powers in a dissenting opinion in Myers v. United States (1926): “The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”
See also Checks and balances; Constitution, U.S.; Constitutional democracy; Constitutionalism; Federalist, The; Impeachment; Independent judiciary; Judicial activism and judicial restraint; Judicial power; Judicial review; Marbury v. Madison; Reversals of Supreme Court decisions; Youngstown Sheet & Tube Co. v. Sawyer

Sources

• George Carey, The Federalist: Design for a Constitutional Republic (Urbana: University of Illinois Press, 1991).
• Martin Diamond, The Founding of the Democratic Republic (Itasca, Ill.: F. E. Peacock, 1981).
• Louis Fisher, Constitutional Conflicts between Congress and the President (Princeton, N.J.: Princeton University Press, 1985).
• Louis Fisher, Constitutional Dialogues (Princeton, N.J.: Princeton University Press, 1988).
• Richard M. Pious, “A Prime Minister for America”, Constitution 4, no. 3 (Fall 1992): 4–14.
• M. J. C. Vile, Constitutionalism and the Separation of Powers (New York: Oxford University Press, 1967)

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Gale Encyclopedia of US History: Separation of Powers

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Separation of powers is a doctrine that is often believed to rest at the foundation of the U.S. Constitution. It holds that liberty is best preserved if the three functions of government—legislation, law enforcement, and adjudication—are in different hands. The modern idea of separation of powers is to be found in one of the most important eighteenth-century works on political science, the Baron de Montesquieu's The Spirit of the Laws (1748), which states that "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates … [or] if the power of judging be not separated from the legislative and executive powers." InFederalist No. 47 (1788) James Madison, commenting on Montesquieu's views and seeking to reconcile them with the Constitution's provisions, states that "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed [sic], or elective, may justly be pronounced the very definition of tyranny."
In truth, however, the Constitution does not strictly adhere to the separation of powers, as the three branches of the government—Congress, the president, and the courts—have some overlap in their constitutionally assigned functions. Thus, although Congress is charged with legislation, a bill does not become law until the president affixes his signature, and the president may veto the legislation, which can be overridden only by a two-thirds vote of the House and Senate. Similarly, the courts came to be recognized to have the power of judicial review, pursuant to which they may declare laws or executive acts to exceed the authorization of the Constitution, and thus to be null and void. Congress is given the power to impeach and try executive and judicial branch officials for misconduct; if found guilty, they are removed from office. Presidential appointments to the judiciary or to the cabinet require the approval of a majority vote in the Senate; treaties negotiated by the president require a two-thirds Senate majority. These and other provisions are the famed "Checks and Balances" within the Constitution, which are believed to prevent the exercise of arbitrary power by each of the branches.

Separation of Powers: Eighteenth-and Nineteenth-Century Issues

Nevertheless, whether or not the branches occasionally are involved in each other's assigned tasks, Montesquieu's idea that separation of powers should still be preserved whenever possible has been an important one throughout American history. In Hayden's Case (1792), for example, one of the earliest matters to be brought before the federal courts, the judges refused to perform the task a federal statute assigned them of reviewing applicants for Revolutionary War pensions. The reason was that their review was subject to overturning by the secretary of war, an executive branch official. The judges stated that to participate would be to compromise the independence of the judiciary. Similarly, in the early years of the Washington administration, the U.S. Supreme Court declined to announce advisory opinions because it felt its task should be limited to adjudication of actual cases.
Until about 1798 the federal courts decided cases based on the assumed existence of a federal common law of crimes, meaning that acts considered criminal in England would be considered so in the United States although no statute had been passed to prohibit them. Critics of this procedure argued that the American scheme of government required that the legislature first define a crime and affix a punishment before the courts could act. This matter became an important political issue in the period leading up to the presidential election of 1800, and the Supreme Court rejected the practice in U.S. v. Hudson and Goodwin (1812).
Separation of powers resurfaced from time to time in the nineteenth century as a cause of concern. It arose, for example, in the impeachment of President Andrew Johnson. Congress had passed, over the president's veto, the Tenure of Office Act (1867), which prevented him from replacing cabinet officials before the Senate had con-firmed their successors. Congress's aim was to ensure that Johnson was not able to replace officials whom Congress believed to be more committed to congressional policies than was the president himself. President Johnson fired his secretary of war in defiance of the statute, and was impeached by the House and brought for trial before the Senate. His defense was that the independence of the executive required that he have the power to fire as well as nominate executive branch officials, and his narrow acquittal on the impeachment charges at his Senate trial was generally seen as a vindication of the separation of powers principle.

Separation of Powers in the Twentieth Century

In the twentieth century, similar sporadic attention was paid to separation of powers. For example, when President Franklin D. Roosevelt sought legislative authorization for increasing the number of justices on the Supreme Court, he was accused of attempting to "pack the Court" in order to cobble together a majority of justices to end the Court's consistent pattern of rejecting key New Deal measures. The court-packing measure was never passed. One reason was the blistering criticism of the president for seeking to compromise the independence of the judiciary. Another was that the Supreme Court, probably taking the hint, reversed course on several key issues of constitutional interpretation. The principle of separation of powers was preserved in that the president's bill failed, although it was clear that the president had managed to change the course of Supreme Court adjudication. The Court itself sought to rein in executive authority on separation of powers grounds when in Youngstown Sheet and Tube Co. v. Sawyer (1952) it invalidated President Harry Truman's attempt to seize and operate the nation's steel mills without statutory authority.
In reaction to the growing military power wielded by the president in the late twentieth century and the tendency of the executive to involve the country's armed forces in foreign adventures, Congress passed the War Powers Act of 1973 as a means of subordinating the president to the constitutionally granted power of the Congress to declare war. Congress's concern with the exercise of executive power was also reflected in the passage, following the Watergate scandal, of the Independent Counsel Act of 1978, which created the Office of Independent Counsel to investigate executive misconduct and report on possible impeachable offenses to the Congress. Shortly after its passage, the law was challenged before the Supreme Court as a violation of separation of powers, on the grounds that the prosecutorial authority it created was, by definition, independent of the executive branch (to which branch the Constitution assigns the prosecutorial task) and that it involved members of the judiciary in the selection of the independent counsels. The act was upheld by a 7 to 1 vote of the Supreme Court in Morrison v. Olson (1988). Justice Antonin Scalia's lone dissent in that case (on separation of powers grounds) was belatedly recognized as prescient, following the operation of a brace of independent counsels appointed during the Clinton administration and the expenditure of many millions of dollars in investigations perceived as yielding few valuable results. When the Independent Counsel Act came up for renewal in 1999, and when even one of the most prominent independent counsels, Kenneth Starr, appeared before Congress to testify against it on separation of powers grounds, it was allowed to expire.
A final matter involving the separation of powers, and an important political issue in the late twentieth and early twenty-first century, was whether state and federal judges had, for most of preceding seven decades, been making rather than simply interpreting the law. Republican presidential candidates tended to run on platforms that were critical of the expansionist interpretations of the Warren and Burger courts and that obliged the nominees to rein in "judicial activism." When George W. Bush became president in 2001, his commitment to appoint judges in the mold of the Supreme Court's most conservative members, Justices Scalia and Clarence Thomas—justices publicly committed to altering much of the jurisprudence of the late twentieth century—raised separation of powers difficulties. The question of "judicial ideology" became the subject of congressional hearings, and none of the new president's nominees for the federal judiciary were con-firmed for his first nine months in office. Republicans tended to argue—invoking separation of powers rhetoric in support of the president's position—that the Senate was now seeking wrongly to dictate what the judiciary should do in particular substantive areas of the law. Key Senate Democrats responded that they were simply seeking to fulfill their constitutional obligations to review judicial nominees in light of their fitness for office. Two centuries after the writing of the Constitution, then, the tension between the principle of separation of powers and its imperfect implementation in that document, a tension with which Madison sought to grapple in Federalist No. 47, had yet to be resolved.

Bibliography

Fisher, Louis. Constitutional Conflicts between Congress and the President. Princeton, N.J.: Princeton University Press, 1985.
Kutler, Stanley I. The Wars of Watergate: The Last Crisis of Richard Nixon. New York: Knopf, 1990.
Marcus, Maeva. Truman and the Steel Seizure Case: The Limits of Presidential Power. New York: Columbia University Press, 1977.
Presser, Stephen B. The Original Misunderstanding: The English, the Americans, and the Dialectic of Federalist Jurisprudence. Durham, N.C.: Carolina Academic Press, 1991.
Vile, M. J. C. Constitutionalism and the Separation of Powers. Oxford: Clarendon Press, 1967.
Whittington, Keith E. Constitutional Construction: Divided Powers and Constitutional Meaning. Cambridge, Mass.: Harvard University Press, 1999.
Wolfe, Christopher. The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law. Rev. ed. Lanham, Md.: Rowman and Littlefield, 1994.
Wood, Gordon S. The Creation of the American Republic, 1776– 1787. Chapel Hill: University of North Carolina Press, 1969.

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West's Encyclopedia of American Law: Separation of Powers

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This entry contains information applicable to United States law only.

The division of state and federal government into three independent branches.
The first three articles of the U.S. Constitution call for the powers of the federal government to be divided among three separate branches: the legislative, the executive, and the judiciary branch. Under the separation of powers, each branch is independent, has a separate function, and may not usurp the functions of another branch. However, the branches are interrelated. They cooperate with one another and also prevent one another from attempting to assume too much power. This relationship is described as one of checks and balances, where the functions of one branch serve to contain and modify the power of another. Through this elaborate system of safeguards, the Framers of the Constitution sought to protect the nation against tyranny.
Under the separation of powers, each branch of government has a specific function. The legislative branch — the Congress — makes the laws. The executive branch — the president— implements the laws. The judiciary — the court system — interprets the laws and decides legal controversies. The system of federal taxation provides a good example of each branch at work. Congress passes legislation regarding taxes. The president is responsible for appointing a director of the Internal Revenue Service to carry out the law through the collection of taxes. The courts rule on cases concerning the application of the tax laws.
Under the system of checks and balances, each branch acts as a restraint on the powers of the other two. The president can either sign the legislation of Congress, making it law, or veto it. The Congress, through the Senate, has the power of advise and consent on presidential appointments and can therefore reject an appointee. The courts, given the sole power to interpret the Constitution and the laws, can uphold or overturn acts of the legislature or rule on actions by the president. Most judges are appointed, and therefore Congress and the president can affect the judiciary. Thus at no time does all authority rest with a single branch of government. Instead, power is measured, apportioned, and restrained among the three government branches. The states also follow the three-part model of government, through state governors, state legislatures, and the state court systems.
Our system of government in the United States is largely credited to James Madison and is sometimes called the Madisonian model. Madison set forth his belief in the need for balanced government power in The Federalist, No. 51. However, the concept of separation of powers did not originate with Madison. It is often attributed to the French philosopher Baron Montesquieu, who described it in 1748. At the Constitutional Convention of 1787, Madison played a leading role in persuading the majority of the Framers to incorporate the concept into the Constitution.
See: Congress of the United States; Constitution of the United States; Judicial Review; President of the United States; Presidential Powers; Supreme Court of the United States.

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Dictionary of Cultural Literacy: Politics: separation of powers

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A fundamental principle of the United States government, whereby powers and responsibilities are divided among the legislative branch, executive branch, and judicial branch. The officials of each branch are selected by different procedures and serve different terms of office; each branch may choose to block action of the other branches through the system of checks and balances. The framers of the Constitution designed this system to ensure that no one branch would accumulate too much power and that issues of public policy and welfare would be given comprehensive consideration before any action was taken. 

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Wikipedia on Answers.com: Separation of powers

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"Balance of powers" redirects here. For other uses, see Balance of power.

For other uses, see Separation of powers (disambiguation).

The separation of powers, often imprecisely used interchangeably with the trias politica principle,^[1] is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic. Under this model, the stateis divided into branches, each with separate and independent powers and areas of responsibility so that no branch has more power than the other branches. The normal division of branches is into an executive, a legislature, and a judiciary. For similar reasons, the concept of separation of church and state has been adopted in a number of countries, to varying degrees depending on the applicable legal structures and prevalent views toward the proper role of religion in society.^{[citation needed]}

Contents 1 Montesquieu's tripartite system 2 Comparison between Presidential and Parliamentary systems 3 Various models 3.1 Three branches 3.1.1 Australia 3.1.2 France 3.1.3 Hong Kong 3.1.4 India 3.1.5 United Kingdom 3.1.6 United States 3.1.6.1 Checks and balances 3.2 Other systems 3.2.1 Belgium 3.2.2 Costa Rica 3.2.3 European Union 3.2.4 Germany 3.2.5 Hungary 3.2.6 Republic of China 4 See also 5 References 6 Further reading 7 External links

Montesquieu's tripartite system

The term is ascribed to French Enlightenment political philosopher Baron de Montesquieu.^[2][3] Montesquieu described division of political power among an executive, a legislature, and a judiciary. He based this model on the British constitutional system, in which he perceived a separation of powers among the monarch, Parliament, and the courts of law. Subsequent writers have noted that this was misleading^{[citation needed]}, because the United Kingdom had a very closely connected legislature and executive, with further links to the judiciary (though combined with judicial independence).

Montesquieu did specify that "the independence of the judiciary has to be real, and not apparent merely". "The judiciary was generally seen as the most important of powers, independent and unchecked", and also considered it dangerous.^{[citation needed]}

Comparison between Presidential and Parliamentary systems

In democratic systems of governance based on the trias politica, a fundamental parallel and a fundamental difference exists between presidential systems and constitutional monarchic parliamentary system of government.

The parallel is that the three branches of government (legislative, executive, judicial) exist largely independent of each other, with their own prerogatives, domains of activity, and exercises of control over each other.

• The legislative body has control of the executive finances, and has judiciary powers, it also has control of the way the judiciary works.
• The judiciary often has control of laws not being contradictory to the constitution or other laws and it has the power to correct and control the way the executive body exercises it powers (to execute the law)

The difference between the two systems is:

• In presidential systems, the incumbent of the Head-of-state is elected to office and, after transfer of power, appoints his administration (like in the United States) or a government headed by a prime minister is formed within the parliament, based on the elected majority (like in France). The latter might lead to a "cohabitation," where a president and his government belonging to different parties or coalitions. Also further down the ladder of political power, regional or local legislative bodies and chief executives are elected (e.g. state governor and state senate in the United States, the Conseil Communal and Bourgemestre in France).
• In constitutional monarchic parliamentary systems, only the legislative body is elected and a government formed on the basis of majority or a coalitions of parties. Elected members of parliament have to resign from their mandate in order to accept an executive office. This is true in regional and local councils are elected and the executive nominated.
• In a parliamentary system, when the term of the legislature ends, so too may the tenure of the executive selected by that legislature. However, in a presidential system, the executive's term may or may not coincide with the legislature's, as their selection is technically independent of the legislature.

Two-branch power systems may have systems in which certain branches have more than one power. Often a legislative body is elected, while the executive is nominated. The nominated executive branch also has power of presenting legislation, while the legislative body is only has a controlling function. In those systems, the judiciary is subservient to the executive and has no power to control either the executive or the legality of new legislative texts.

The separation of powers is a doctrine which provides a separate authority that makes it possible for the authorities to check each other's checks and balances (Executive Authority Act 1936).

Various models

Constitutions with a high degree of separation of powers are found worldwide. The UK system is distinguished by a particular entwining of powers. In Italy the powers are completely separated, even if Council of Ministers need the vote of confidence from both chambers of Parliament, that's however formed by a wide number of members (almost 1,000). A number of Latin American countries have electoral branches of government.

Countries with little separation of power include New Zealand and Canada. Canada makes limited use of separation of powers in practice, although in theory it distinguishes between branches of government. New Zealand also subscribes to the principle of 'Separation of Powers' through a series of constitutional safeguards. The Executive requires regular approval from the Legislature to carry out decisions. The Mixed Members Proportionate framework also caters for a coalition of parties to form government where a majority from a single party does not exist. The Judiciary is also free of government interference. If a series of judicial decisions result in an interpretation of the law which the Executive considers does not reflect the intention of the policy, the Executive can change the legislation. However, they can not direct or request a judicial officer to revise or reconsider a decision. These decisions are final. Should there be a dispute between the Executive and Judiciary, the Executive has no authority to direct the Judiciary, or its individual members.

Complete separation-of-powers systems are almost always presidential, although theoretically this need not be the case. There are a few historical exceptions, such as the Directoire system of revolutionary France. Switzerland offers an example of non-Presidential separation of powers today: It is run by a seven-member executive branch, the Federal Council. However, some might argue that Switzerland does not have a strong separation of powers system, as the Federal Council is appointed by parliament (but not dependent on parliament), and the judiciary has no power of review.

Three branches

Australia

Main article: Separation of powers in Australia

Australia does not maintain a strict separation between the legislative and executive branches of government—indeed, government ministers are required to be a member of parliament—but the federal judiciary strictly guards its independence from the other two branches. However, under influence from the American constitution, the Australian constitution does define the three branches of government separately, and this has been interpreted by the judiciary to induce an implicit separation of powers. State governments have a similar level of separation of power, but this is generally on the basis of convention, rather than constitution.

France

Main article: Government of France

The government of France is divided up into three branches:

• Executive. This includes the popularly elected president as well as the prime minister and cabinet.
• Legislature. A bicameral legislature that includes the Senate (upper house) and the National Assembly (lower house).
• Judiciary. This includes the judicial and administrative orders. It also includes a constitutional court.

Hong Kong

Hong Kong is a largely self-governing Chinese territory pursuant to the Sino-British Joint Declaration, an international treaty registered with the United Nations. Currently, Hong Kong has three branches of government as codified in the Basic Law, which preserves the political setup of the British colonial era under the doctrine of one country, two systems:

• Government - executive
• Legislative Council - legislature
• Judiciary (Court of Final Appeal and other courts and tribunals) - judiciary

The Chief Executive, elected by a 800-member Election Committee, is both head of the region and head of government, and chairs the Executive Council which composes of unofficial members and government secretaries. The law courts exercise the power of judicial review of constitutionality of legislations and administrative actions, and emphasis the separation of powers in their rulings. The Chief Justice also stated this position in the ceremonial opening of the legal year.^[4] However, politically separation of powers is usually argued against, with the leaders of the People's Republic of China and supportive politicians publicly requesting for the three branches to cooperate and emphasizing an "executive-led" system.^[5]

India

Main articles: Constitution of India and Government of India

• Parliament = Legislative
• Prime Minister, Cabinet, Government Departments & Civil Service = Executive
• Supreme Court = Judicial

India follows a parliamentary system of government, which offers a clear separation of powers. The judiciary branch is fairly independent of the other two branches. Executive powers are vested with the President, who is assisted by the Cabinet Secretary and other Secretaries. All three branches have "checks and balances" over each other to maintain the balance of power.

United Kingdom

Main article: Separation of powers in the United Kingdom

• Parliament - legislature
• Prime Minister, Cabinet, Government Departments & Civil Service - executive
• Courts - judiciary

Although the doctrine of separation of power plays a role in the United Kingdom's constitutional doctrine, the UK constitution is often described as having "a weak separation of powers" A. V. Dicey, despite its constitution being the one to which Montesquieu originally referred. For example, in the United Kingdom, the executive forms a subset of the legislature, as did—to a lesser extent—the judiciary until the establishment of the Supreme Court of the United Kingdom. The Prime Minister, the Chief Executive, sits as a member of the Parliament of the United Kingdom, either as a peer in the House of Lords or as an elected member of the House of Commons (by convention, and as a result of the supremacy of the Lower House, the Prime Minister now sits in the House of Commons) and can effectively be removed from office by a simple majority vote. Furthermore, while the courts in the United Kingdom are undoubtedly amongst the most independent in the world, the Law Lords, who were the final arbiters of judicial disputes in the UK sat simultaneously in the House of Lords, the upper house of the legislature, although this arrangement ceased in 2009 when the Supreme Court of the United Kingdom came into existence. Furthermore, because of the existence of Parliamentary sovereignty, while the theory of separation of powers may be studied there, a system such as that of the UK is more accurately described as a "fusion of powers".^{[citation needed]}

The development of the British constitution, which is not a codified document, is based on this fusion in the person of the Monarch, who has a formal role to play in the legislature (Parliament, which is where legal and political sovereignty lies, is the Crown-in-Parliament, and is summoned and dissolved by the Sovereign who must give his or her Royal Assent to all Bills so that they become Acts), the executive (the Sovereign appoints all ministers of His/Her Majesty's Government, who govern in the name of the Crown) and the judiciary (the Sovereign, as the fount of justice, appoints all senior judges, and all public prosecutions are brought in his or her name).

The British legal systems are based on common law traditions, which require:

• Police or regulators cannot initiate complaints under criminal law but can only investigate (prosecution is mostly reserved for the Crown Prosecution Service), which prevents selective enforcement, e.g. the 'fishing expedition' which is often specifically forbidden.
• Prosecutors cannot withhold evidence from counsel for the defendant; to do so results in mistrial or dismissal. Accordingly, their relation to police is no advantage.
• Defendants convicted can appeal, but only fresh and compelling evidence not available at trial can be introduced, restricting the power of the court of appeal to the process of law applied.

United States

Main article: Separation of powers under the United States Constitution

In the United States Constitution, Article 1 Section I gives Congress only those "legislative powers herein granted" and proceeds to list those permissible actions in Article I Section 8, while Section 9 lists actions that are prohibited for Congress. The vesting clause in Article II places no limits on the Executive branch, simply stating that, "The Executive Power shall be vested in a President of the United States of America."^[6] The Supreme Court holds "The judicial Power" according to Article III, and it established the implication of Judicial review in Marbury vs Madison.^[7] The federal government refers to the branches as "branches of government", while some systems use "government" to describe the executive. The Executive branch has attempted to claim power arguing for separation of powers to include being the Commander in Chief of a standing army since the Civil war, executive orders, emergency powers and security classifications since WWII, national security, signing statements, and the scope of the unitary executive.

Checks and balances

To prevent one branch from becoming supreme, protect the "opulent minority" from the majority, and to induce the branches to cooperate, government systems that employ a separation of powers need a way to balance each of the branches. Typically this was accomplished through a system of "checks and balances", the origin of which, like separation of powers itself, is specifically credited to Montesquieu. Checks and balances allow for a system based regulation that allows one branch to limit another, such as the power of Congress to alter the composition and jurisdiction of the federal courts.

Legislative (Congress)	Executive (President)	Judicial (Supreme Court)
Passes bills; has broad taxing and spending power; controls the federal budget; has power to borrow money on the credit of the United States (may be vetoed by President, but vetoes may be overridden with a two-thirds vote of both houses) Has sole power to declare war. Oversees, investigates, and makes the rules for the government and its officers. Defines by law the jurisdiction of the federal judiciary in cases not specified by the Constitution Ratification of treaties signed by the President and gives advice and consent to presidential appointments to the federal judiciary, federal executive departments, and other posts (Senate only) Has sole power of impeachment (House of Representatives) and trial of impeachments (Senate); can remove federal executive and judicial officers from office for high crimes and misdemeanors	Is the commander-in-chief of the armed forces Executes the instructions of Congress. May veto bills passed by Congress (but the veto may be overridden by a two-thirds majority of both houses) Executes the spending authorized by Congress. Declares states of emergency and publishes regulations and executive orders. Makes executive agreements (does not require ratification) and signs treaties (ratification requiring by two-thirds of the Senate) Makes appointments to the federal judiciary, federal executive departments, and other posts with the advice and consent of the Senate. Has power to make temporary appointment during the recess of the Senate Has the power to grant "reprieves and pardons for offenses against the United States, except in cases of impeachment."	Determines which laws Congress intended to apply to any given case Exercises judicial review, reviewing the constitutionality of laws Determines how Congress meant the law to apply to disputes Determines how a law acts to determine the disposition of prisoners Determines how a law acts to compel testimony and the production of evidence Determines how laws should be interpreted to assure 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. Federal judges serve for life

Other systems

Belgium

Belgium is currently a federated state that has imposed the trias politica on different governmental levels. The constitution of 1831, considered one of the most liberal of its time for limiting the powers of its monarch and imposing a rigorous system of separation of powers, is based on three principles:

Trias Politica (horizontal separation of powers):

• The legislative power is attributed to an elected parliamentary body elected with a representative general election system (one person one vote).
• The executive power is attributed to the Council of Ministers. Ministers are appointed by the King, usually from the elected members of parliament (non-elected people can also be nominated). However, they must first resign form their elected seat.
• The judicial power is in the hands of the courts. Magistrates are nominated by the minister (on proposal from a Council of the Magistrates).
  • Magistrates can be nominated to become a judge (sitting magistrates) or instructing judge (investigating judge) of Procureur (public prosecutor) (the standing magistrates).
  • The executive branch of the government is responsible to provide the physical means to execute its role (infrastructure, staff, financial means).
  • Judges and some other people cannot run for elected office while they are nominated to certain positions (military, police-officers, clergy, notaries, bailiffs).

Subsidiarity (vertical separation of powers):

• Supranational directives (EU legislation) and international treaties are subjected to approval of the federal level (the federal level being Belgium the nation state)
• The federal level is composed of the following:
  • A bicameral parliament (House of Representative and Senate) (in 2014 this will be a directly elected house and an indirectly appointed Senate of the regions)
  • A federal government (lead by the Prime Minister and the ministers and secretaries of state)
    • • Tasked with overseeing justice, defense, foreign affairs, and social security, public health
  • High Court, constitutional Court, Cassation Court
• The regional level is composed of the following:
  • A monocameral parliament
  • A regional government led by the minister-president (ministers and secretaries of state) is tasked with regional matters.
• Provinces also have similar structures:
  • A monocameral provincial council
  • A provincial governor assisted by deputies and a arrondissements commissars is tasked with provincial matters.
  • Appellate Court, Assisses Court
• City and communal entities:
  • A city or communal council composed of a mayor, assisted by aldermen, is tasked with local matters.
  • Magistrates Court, Correctional Court (three judges).
  • Justice of the peace and Police Court judges (single judge courts)

Secularism (separation of state and religion):

• The king, the head of state, holds no political authority and requires executive approval by a minister for every action and statement; he nominates the ministers but he does not choose them (his executive powers); he signs and decrees the laws voted in parliament (his legislative powers);
• The head of state is commander in chief of the military (in title only), politically the military depends of the Minister of Defense and the chiefs of staff are responsible towards parliament and take their orders from the Minister of Defense and the government;
• Certain functions are deemed incompatible and people must to resign from their function if they want to assume responsibilities in another function (military commanders have never been government ministers, even during a war)

Costa Rica

In the aftermath of the 44-day civil war in 1948 (after former President and incumbent candidate Rafael Álgel Calderón Guardia tried to take power through fraud, by not recognising the results of the presidential election that he had lost), the question of which transformational model the Costa Rican State would follow was the main issue that confronted the victors. A Constituent Assembly was elected by popular vote to draw up a new constitution, enacted in 1949, and remains in force. This document was an edit of the constitution of 1871, as the constituent assembly rejected more radical corporatist ideas proposed by the ruling Junta Fundadora de la Segunda República (which, although having come to power by military force, abolished the armed forces). Nonetheless, the new constitution increased centralization of power at the expense of municipalities and eliminated provincial government altogether, at the time it increased the powers of congress and the judiciary.

It established the three supreme powers as the legislature, executive, and judicial branches, but also created two other autonomous state organs that have equivalent power, but not equivalent rank. The first is the Supreme Elections Tribunal (electoral branch) which controls elections and makes unique, unappealable decisions on their outcomes.

The second is the office of the Comptroller General (audit branch), an autonomous and independent organ nominally subordinate to the unicameral legislative assembly. All budgets of ministries and municipalities must pass through this agency, including the execution of budget items such as contracting for routine operations. The Comptroller also provides financial vigilance over government offices and office holders, and routinely brings actions to remove mayors for malfeasance, firmly establishing this organization as the fifth branch of the Republic.

European Union

First, note that the European Union is a supranational polity, and is neither a country nor a federation; but as the EU wields political power and is fully aware of its "democratic deficit", it attempts to comply with the principle of separation of powers. There are seven institutions of the European Union. In intergovernmental matters, most power is concentrated in the Council of the European Union – giving it the characteristics of a normal international organization. Here, all power at the EU level is in one branch. In the latter there are four main actors. The European Commission acts as an independent executive which is appointed by the Council in conjunction with the European Parliament; but the Commission also has a legislative role as the sole initiator of EU legislation. An early maxim was: "The Commission proposes and the Council disposes"; and although the EU's lawmaking procedure is now much more complicated, this simple maxim still holds some truth. As well as both executive and legislative functions, the Commission arguably exercises a third, quasi-judicial, function under Articles 101 & 102 TFEU (competition law ); although the ECJ remains the final arbiter. The European Parliament is one half of the legislative branch and is directly elected. The Council itself acts both as the second half of the legislative branch and also holds some executive functions (some of which are exercised by the related European Council in practice). The European Court of Justice acts as the independent judicial branch, interpreting EU law and treaties. The remaining institution, the European Court of Auditors, is an independent audit authority (due to the sensitive nature of fraud in the EU).

• Council of the European Union – legislative and executive
• European Commission – executive, legislative and quasi-judicial
• European Council – executive
• European Court of Auditors – audit
• European Court of Justice – judicial
• European Parliament – legislative

Germany

The three branches in German government are further divided into six main bodies enshrined in the Basic Law for the Federal Republic of Germany:

• Federal President (Bundespräsident) - executive
• Federal Cabinet (Bundesregierung) - executive
• Federal Diet (Bundestag) & Federal Council (Bundesrat) - legislative
• Federal Assembly (Bundesversammlung) - presidential electoral college (consisting of the members of the Bundestag and electors from the constituent states)
• Federal Constitutional Court (Bundesverfassungsgericht) - judiciary

Besides the constitutional court the judicial branch at the federal level is made up of five supreme courts — one for civil and criminal cases (Bundesgerichtshof), and one each for administrative, tax, labour, and social security issues. There are also state (Länder / Bundesländer) based courts beneath them, and a rarely used senate of the supreme courts.

Hungary

The four independent branches of power in Hungary (the parliament, the government, the court system, and the office of the public accuser) are divided into six bodies:

• Parliament (Magyar Országgyűlés): elected every 4 years by the people in a highly complex, two-round voting system
• Government (Magyar Kormány): installed and removed by 50%+1 basic majority vote of the parliament, 4 year terms
• Supreme Court (Legfelsőbb Bíróság): Chief justice elected by qualified (2/3) majority of the parliament, no government oversight
• Constitutional court (Alkotmánybíróság): members elected by qualified majority of the parliament for 8 years, this body nullifies laws and has no government oversight.
• Chief public accuser (Legfőbb ügyész): elected by qualified majority of the parliament, 6 year terms, office budget fixed, no government oversight.
• The President of the Republic (Köztársasági Elnök) is elected by qualified majority of the Hungarian parliament for 5 year terms (cannot be reelected more than once). He/she has ceremonial powers only, signs laws into power and commands the military in time of peace.

The independent pillar status of the Hungarian public accuser's office is a unique construction, loosely modeled on the system Portugal introduced after the 1974 victory of the Carnation Revolution. The public accuser (attorney general) body has became the fourth column of Hungarian democracy only in recent times: after communism fell in 1989, the office was made independent by a new clausule XI. of the Constitution. The change was meant to prevent abuse of state power, especially with regards to the use of false accusations against opposition politicians, who may be excluded from elections if locked in protracted or excessively severe court cases.

To prevent the Hungarian accuser's office from neglecting its duties, natural human private persons can submit investigation requests, called "pótmagánvád" directly to the courts, if the accusers' office refuses to do its job. Courts will decide if the allegations have merit and order police to act in lieu of the accuser's office if warranted. In its decision No.42/2005 the Hungarian constitutional court declared that the government does not enjoy such privilege and the state is powerless to further pursue cases if the public accuser refuses to do so.

Republic of China

Main article: Government of the Republic of China

According to Sun Yat-sen's idea of "separation of the five powers", the government of the Republic of China has five branches:

• Executive Yuan - led by the premier but in actuality it is the president who sets policy - executive
• Legislative Yuan - unicameral - legislature
• Judicial Yuan - its Constitutional Court (highest) and Supreme Court have different jurisdictions - judiciary
• Control Yuan - audit branch
• Examination Yuan - civil service personnel management and human resources

The president and vice president as well as the defunct National Assembly are constitutionally not part of the above five branches. Before being abolished in 2005, the National Assembly was a constitutional convention and electoral college for the president and vice president. Its constitutional amending powers were passed to the legislative yuan and its electoral powers were passed to the electorate.

The relationship between the executive and legislative branches are poorly defined. An example of the problems this causes is the near complete political paralysis that results when the president, who has neither the power to veto nor the ability to dissolve the legislature and call new elections, cannot negotiate with the legislature when his party is in the minority.^[8] The examination and control yuans are marginal branches; their leaders as well as the leaders of the executive and judicial yuans are appointed by the president and confirmed by the legislative yuan. The legislature is the only branch that chooses its own leadership. The vice president has practically no responsibilities.

See also

• Absolute power
• Balance of power (federalism)
• Power sharing
• Constitution of the Roman Republic
• Constitutionalism
• Constitutional economics
• Corruption Perceptions Index - Parliamentary systems are, in general, perceived as less corrupt than other systems
• Fifth power
• Fusion of powers
• Independence of the judiciary
• Judicial activism
• Legal reform
• Mixed government
• List of democracy and elections-related topics
• Pith and substance
• Reserve power - powers exercisable by the head of state without the approval of another branch of the government
• Rule of Law
• Rule According to Higher Law
• Separation of duties
• Signing statement
• Unitary executive theory

References

1. ^ This latter refers specifically to the separation of powers into three branches of government: legislative, judicial and executive.
2. ^ "Baron de Montesquieu, Charles-Louis de Secondat (Stanford Encyclopedia of Philosophy)". Plato.stanford.edu. Retrieved 2008-10-29.
3. ^ "lawiki.org law — Separation of Powers: the reality". lawiki.org. Retrieved 2010-09-16.
4. ^ "Chief Justice's Speech at Ceremonial Opening of the Legal Year 2010". Hong Kong Judiciary. Retrieved 2011-03-07.
5. ^ "Mature Enough for Democracy, And Sensible Too". Global Asia. Retrieved 2011-03-06.
6. ^ Constitution of the United States
7. ^ Madison, James. (8 February 1788) "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments" The Federalist Papers No. 51
8. ^ "E-Notes: Why Taiwan's Political Paralysis Persists — FPRI". Fpri.org. Retrieved 2008-10-29.

9.)http://dictionary.reference.com/

Further reading

• Peter Barenboim, Biblical Roots of Separation of Powers (2005) ISBN 5-94381-123-0, Permalink: http://lccn.loc.gov/2006400578
• Biancamaria Fontana (ed.), The Invention of the Modern Republic (2007) ISBN 9780521033763
• W. B. Gwyn, The Meaning of the Separation of Powers (1965) (no ISBN)
• Bernard Manin, Principles of Representative Government (1995; English version 1997) ISBN 0521452589 (hbk), ISBN 0521458919 (pbk)
• José María Maravall and Adam Przeworski (eds), Democracy and the Rule of Law (2003) ISBN 0521825598 (hbk), ISBN 0521532663 (pbk)
• Paul A. Rahe, Montesquieu and the Logic of Liberty (2009) ISBN 9780300141252 (hbk), ISBN 9780300168082 (pbk)
• Iain Stewart, "Men of Class: Aristotle, Montesquieu and Dicey on 'Separation of Powers' and 'The Rule of Law'" (2004)
• Iain Stewart, "Montesquieu in England: his 'Notes on England', with Commentary and Translation" (2002).
• Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (2000) ISBN 978-0-19-829730-7
• M. J. C. Vile, Constitutionalism and the Separation of Powers (1967, Indianapolis: Liberty Fund, 1998) Second edition. ISBN 0865971749 (hbk), ISBN 0865971757 (pbk)

External links

• Polybius and the Founding Fathers: the separation of powers
• Arbitrary Government Described and the Government of the Massachusetts Vindicated from that Aspersion (1644)

Read more: http://www.answers.com/topic/separation-of-powers#ixzz1nzQzkGJ0