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- The Constitution
An Overview of Separation of Powers
In trying to prevent a king, oppression, or tyranny, the Founding Fathers ensured no one person or group wields complete power in making, carrying out, and evaluating laws and policies. As a result, the Constitution creates three co-equal branches of government. The Executive Branch is charged with carrying out laws with executive powers. Those laws are made using the congressional powers of the Legislative Branch. Finally, the Judicial Branch uses the power of judicial review to ensure laws and policies are Constitutional.
“In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.”
The term, separation of powers, originates with Charles Montesquieu, a French philosopher. Montesquieu noted that the distribution of power compels the government to regulate itself. With distinct parts of a government having clear roles and responsibilities, the chances of tyrannical rule are minimized. The basic argument was that liberty is protected when governmental powers are divided.
In the words of the Founding Fathers:
In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.”
Hamilton / Madison Federalist 51, 1788.
Alexander Hamilton and James Madison note the preservation of liberty is directly tied to the partition of authority and governmental roles.
The Definition of Separation of Powers
Separation of powers is a political arrangement in which the powers of the federal government are divided among multiple branches.
The executive and legislative powers are both conferred through the Constitution but their officers are selected through separate elections. The judicial branch is independent although each branch balances the power of the other two.
Did you know that the U.S. government is based on six foundational principles? Besides separation of powers, the other five are checks and balances, popular sovereignty, limited government, federalism, and judicial review.
Examples of Separation of Powers
In the United States, laws are made by Congress. Since Congress is bicameral, two houses within, the U.S. House and Senate have to agree to pass a bill. However, for that bill to become law, the President must sign it. This intentional separation and requirement for cooperation is a clear example of the separation of powers at the federal level. As a result, in this instance, the legislative branch must cooperate with the executive branch to complete its constitutional responsibility of passing laws.
In another example, the executive branch is tasked with carrying out and enforcing the law. To do so, executive agencies require funding that is secured through the legislative branch. Both branches are constrained in their authority and cannot become too powerful as a result.
Separation of powers and the military:
While the Constitution appoints the President as the Commander-in-Chief of the armed forces, the responsibility of declaring war and funding the military lies with Congress. This straightforward division was designed to prevent complete control by one person or a group of powerful leaders. In order to obtain initial funding and continuing financial appropriations, cooperation between the executive and legislative branches must occur. The President's role in supervising the military operates under military regulations created by Congress.
Constitutional Roles of Each Branch
JUDICIAL | EXECUTIVE | LEGISLATIVE |
Interpret the constitutionality of laws | Carry out and enforces laws | Make laws |
Oversee impeachment trials | Oversee federal bureaucracy | Declare war |
Administer Presidential oath of office | Commander-in-chief of armed forces | Set taxes, borrow and coin money |
Rulings become "law of the land" | Make international treaties | Impeach and try federal officials |
Use judicial review to check the power of other branches | Host international leaders | Approve presidential appointees |
Nominate federal judges | Approve international treaties |
Table of Federal Powers by Branch, StudySmarter.
Separation of Powers: Advantages and Disadvantages
Advantages of Separation of Powers
Prevents the concentration of power in any one part of the government.
Allows for the checks and balances needed to avoid tyranny and limits on liberty.
Provides more accountability to the citizenry.
Disadvantages of Separation of Powers
Competition for power emerges as there can be an overlap of responsibilities. This rivalry for authority can create tension and impede the workings of government.
Governmental processes can be slow as multiple branches may have to be involved with matters of government.
The size and cost of government are typically higher as the federal government has more staffing and activities.
Separation of Powers in the Constitution
The U.S. The Constitution organizes the federal government into three branches with the purpose of creating a separation of powers. The functions of each branch are clear and designed to provide mechanisms for the checks and balances on each branch.
Fig. 1: U.S. Constitution
Legislative Powers
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Article 1, Section 1, U.S. Constitution.
Executive Powers
The executive power shall be vested in a President of the United States of America..”
Article 2, Section 1, U.S. Constitution.
The President shall be commander in chief of the Army and Navy of the United States…”
Article 2, Section 2, U.S. Constitution.
Judicial Powers
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”
Article 3, Section1, U.S. Constitution.
Judicial Review. In the Supreme Court case Marbury v. Madison, the Supreme Court ruled that the federal courts held the power to review federal laws and determine constitutionality. This landmark case allows the courts to challenge both executive actions and congressional legislation. A minor issue over judgeships and presidential appointments has become one of the most important cases in U.S. constitutional law. As a result, the power of the judiciary to rule on presidential and legislative actions was cemented into the U.S. system.
Evidently, the organization of the federal government of America was designed with separation of powers at the core.
Fig. 2: Division of Federal Powers
Separation of Powers - Key takeaways
- The U.S. Constitution organizes the federal government into three branches: legislative, executive, and judicial
- Each branch of government has distinct constitutional powers with mechanisms that serve as checks and balances on the other branches.
- The Founding Fathers intentionally designed the U.S. system to distribute powers in order to prevent tyranny/
- The three branches are co-equal and both the executive and legislative branches are elected.
- The three branches must cooperate to create and administer laws and policies.
- This arrangement prevents the concentration of power in any one part of the government and provides more accountability to the citizenry.
- This arrangement does create competition for power between branches and a slower, more costly government process.
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Frequently Asked Questions about Separation of Powers
What is a simple definition of separation of powers?
Separation of powers is a political arrangement in which the powers of the federal government is divided among multiple branches.
What is the separation of powers and why is it important?
The separation of powers outlined in the COnstitution protects against abuse of power by any one branch of government.
What are examples of separation of powers?
The design of having all three branches of government have an impact on the nation's laws is a clear example of a separation of powers. In another example, the executive branch is tasked with carrying out and enforcing the law. To do so, executive agencies require funding that is secured through the legislative branch. Finally, the judicial branch can evaluate the constitutionality of the actions of the other two in the lawmaking and execution process.
What is the separation of powers in the Constitution?
The U.S. The Constitution organizes the federal government into three branches with the purpose of creating a separation of powers. The functions of each branch are clear and designed to provide mechanisms for the checks and balances on each branch.
What are the pros and cons of separation of powers?
The separation of powers prevents too much power in one branch and allows for checks and balances. However, competition between branches is increased as is the size and cost of government.
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