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Separation of powers under the United States Constitution

The United States Capitol dome as seen from the Supreme Court Building
This article refers to the separation of powers specifically in the United States. For the
article on the theory of separation of powers, see: separation of powers

Separation of powers is a political doctrine originating from the United States Constitution,
according to which the legislative, executive, and judicial branches of the United States
government are kept distinct in order to prevent abuse of power. This U.S. form of separation of
powers is associated with a system of checks and balances.

During the Age of Enlightenment, philosophers such as John Locke advocated the principle in
their writings, whereas others, such as Thomas Hobbes, strongly opposed it. Montesquieu was
one of the foremost supporters of separating the legislature, the executive and the judiciary. His
writings considerably influenced the opinions of the framers of the United States Constitution.

Strict separation of powers does not operate in Britain, whose political structure served in most
instances as a model for the government created by the U.S. Constitution. Under the British
Westminster system, based on parliamentary sovereignty and responsible government,
Parliament (consisting of the Sovereign (King-in-Parliament), House of Lords and House of
Commons) was the supreme lawmaking authority. The executive branch acted in the name of the
King ("His Majesty's Government"), as did the judiciary. The King's Ministers were in most
cases members of one of the two Houses of Parliament, and the Government needed to sustain
the support of a majority in the House of Commons. One minister, the Lord Chancellor, was at
the same time the sole judge in the Court of Chancery and the presiding officer in the House of
Lords. Therefore it may be seen that the three branches of British government often violated the
strict principle of separation of powers, even though there were many occasions when the
different branches of the government disagreed with each other.

Some U.S. states did not observe a strict separation of powers in the 18th century. In New Jersey,
the Governor also functioned as a member of the state's highest court and as the presiding officer
of one house of the New Jersey Legislature. The President of Delaware was a member of the
Court of Appeals; the presiding officers of the two houses of the state legislature also served in
the executive department as Vice Presidents. In both Delaware and Pennsylvania, members of the
executive council served at the same time as judges. On the other hand, many southern states
explicitly required separation of powers. Maryland, Virginia, North Carolina and Georgia all kept
the branches of government "separate and distinct."

Legislative power
Congress has the sole power to legislate for the United States. Under the nondelegation doctrine,
Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the
Supreme Court held in the 1998 case Clinton v. City of New York that Congress could not
delegate a "line-item veto" to the President, by which he was empowered to selectively nullify
certain provisions of a bill before signing it. The Constitution Article I, Section 8; says to give all
the power to Congress. Congress has the exclusive power to legislate, to make laws and in
addition to the enumerated powers it has all other powers vested in the government by the

Where Congress does not make great and sweeping delegations of its authority, the Supreme
Court has been less stringent. One of the earliest cases involving the exact limits of non-
delegation was Wayman v. Southard (1825). Congress had delegated to the courts the power to
prescribe judicial procedure; it was contended that Congress had thereby unconstitutionally
clothed the judiciary with legislative powers. While Chief Justice John Marshall conceded that
the determination of rules of procedure was a legislative function, he distinguished between
"important" subjects and mere details. Marshall wrote that "a general provision may be made,
and power given to those who are to act under such general provisions, to fill up the details."

Marshall's words and future court decisions gave Congress much latitude in delegating powers. It
was not until the 1930s that the Supreme Court held a delegation of authority unconstitutional. In
a case involving the creation of the National Recovery Administration called A.L.A. Schechter
Poultry Corp. v. United States, 295 U.S. 495 (1935), Congress could not authorize the president
to formulate codes of "fair competition." It was held that Congress must set some standards
governing the actions of executive officers. The Court, however, has deemed that phrases such as
"just and reasonable," "public interest" and "public convenience" suffice.

Executive power

Executive power is vested, with exceptions and qualifications,[1] in the president by Article Two,
Section 1. of the Constitution. By law (Section 2.) the president becomes the Commander in
Chief of the Army and Navy, Militia of several states when called into service, has power to
make treaties and appointments to office -- "...with the Advice and Consent of the Senate"--
receive Ambassadors and Public Ministers, and "...take care that the laws be faithfully executed"
(Section 3.) By using these words, the Constitution does not require the president to personally
enforce the law; rather, officers subordinate to the president may perform such duties. The
Constitution, empowers the president to ensure the faithful execution of the laws made by
Congress. Congress may itself terminate such appointments, by impeachment, and restrict the
president. The president's responsibility is to execute whatever instructions he is given by the
Congress. Bodies such as the War Claims Commission, the Interstate Commerce Commission
and the Federal Trade Commission all quasi-judicial often have direct Congressional

Congress often writes legislation to restrain executive officials to the performance of their duties,
as authorized by the laws Congress passes. In INS v. Chadha (1983), the Supreme Court decided
(a) The prescription for legislative action in Art. I, 1requiring all legislative powers to be
vested in a Congress consisting of a Senate and a House of Representativesand 7requiring
every bill passed by the House and Senate, before becoming law, to be presented to the president,
and, if he disapproves, to be repassed by two-thirds of the Senate and Houserepresents the
Framers' decision that the legislative power of the Federal Government be exercised in accord
with a single, finely wrought and exhaustively considered procedure. This procedure is an
integral part of the constitutional design for the separation of powers. Pp. 945951. Further
rulings clarified the case; even both Houses acting together cannot override Executive vetoes
without a 2/3 majority. Legislation may always prescribe regulations governing executive

Judicial power

See also: Article I and Article III tribunals and Jurisdiction stripping

Judicial power the power to decide cases and controversies is vested in the Supreme Court
and inferior courts established by Congress. The judges must be appointed by the president with
the advice and consent of the Senate, hold office during good behavior and receive
compensations that may not be diminished during their continuance in office. If a court's judges
do not have such attributes, the court may not exercise the judicial power of the United States.
Courts exercising the judicial power are called "constitutional courts."

Congress may establish "legislative courts," which do not take the form of judicial agencies or
commissions, whose members do not have the same security of tenure or compensation as the
constitutional court judges. Legislative courts may not exercise the judicial power of the United
States. In Murray's Lessee v. Hoboken Land & Improvement Co. (1856), the Supreme Court held
that a legislative court may not decide "a suit at the common law, or in equity, or admiralty," as
such a suit is inherently judicial. Legislative courts may only adjudicate "public rights" questions
(cases between the government and an individual and political determination).

Checks and balances

Separation of powers is not absolute; it is instead qualified by the doctrine of checks and
balances. James Madison wrote that the three branches "should not be so far separated as to have
no constitutional control over each other." The system of checks and balances is designed to
allow each branch to restrain abuse by another branch.

Legislative Executive Judicial

Writes and May veto laws Determines which laws Congress
enacts laws May not refuse to intended to apply to any given case
Enacts taxes, spend money Determines whether a law is
authorizes allocated for certain unconstitutional
borrowing, and purposes Determines how Congress meant
sets the budget Wages war at the the law to apply to disputes
Has sole power direction of Determines how a law acts to
to declare war Congress (Congress determine the disposition of
May start makes the rules for prisoners
investigations, the military) Determines how a law acts to
especially Makes decrees or compel testimony and the
against the declarations (for production of evidence
executive branch example, declaring Determines how laws should be
The Senate a state of interpreted to assure uniform
considers emergency) and policies in a top-down fashion via
presidential promulgates lawful the appeals process, but gives
appointments of regulations and discretion in individual cases to
judges and executive orders low-level judges. (The amount of
executive Appoints judges and discretion depends upon the
department executive standard of review, determined by
heads department heads the type of case in question.)
The Senate Polices its own members
ratifies treaties Has power to grant
pardons to Judges remain subject to
The House of convicted persons, impeachment and removal by
Representatives except in cases of Congress
may impeach, impeachment
and the Senate
may remove,
executive and
judicial officers


The president exercises a check over Congress through his power to veto bills, but Congress may
override any veto (excluding the so-called "pocket veto") by a two-thirds majority in each house.
When the two houses of Congress cannot agree on a date for adjournment, the president may
settle the dispute. Either house or both houses may be called into emergency session by the
president. The Vice President serves as president of the Senate, but he may only vote to break a
The president, as noted above, appoints judges with the Senate's advice and consent. He also has
the power to issue pardons and reprieves. Such pardons are not subject to confirmation by either
the House of Representatives or the Senate, or even to acceptance by the recipient.

The president is the civilian Commander in Chief of the Army and Navy of the United States. It
is generally understood that he has the authority to command them to take appropriate military
action in the event of a sudden crisis.[2] However, only the Congress is explicitly granted the
power to declare war per se, as well as to raise, fund and maintain the armed forces. Congress
also has the duty and authority to prescribe the laws and regulations under which the armed
forces operate, such as the Uniform Code of Military Justice, and requires that all Generals and
Admirals appointed by the president be confirmed by a majority vote of the Senate before they
can assume their office.


Courts check both the executive branch and the legislative branch through judicial review. This
concept is not written into the Constitution, but was envisioned by many of the Constitution's
Framers (for example, the Federalist Papers mention it). The Supreme Court established a
precedent for judicial review in Marbury v. Madison. There were protests by some at this
decision, born chiefly of political expediency, but political realities in the particular case
paradoxically restrained opposing views from asserting themselves. For this reason, precedent
alone established the principle that a court may strike down a law it deems unconstitutional.

A constitutionality; the power is exercised even by the inferior courts. But only Supreme Court
decisions are binding across the nation. Decisions of a Court of Appeals, for instance, are binding
only in the circuit over which the court has jurisdiction.

The power to review the constitutionality of laws may be limited by Congress, which has the
power to set the jurisdiction of the courts. The only constitutional limit on Congress' power to set
the jurisdiction of the judiciary relates to the Supreme Court; the Supreme Court may exercise
only appellate jurisdiction except in cases involving states and cases affecting foreign
ambassadors, ministers or consuls.

The Chief Justice presides in the Senate during a president's impeachment trial. The rules of the
Senate, however, generally do not grant much authority to the presiding officer. Thus, the Chief
Justice's role in this regard is a limited one.

Equality of the branches

The Constitution does not explicitly indicate the pre-eminence of any particular branch of
government. However, James Madison wrote in Federalist 51, regarding the ability of each
branch to defend itself from actions by the others, that "it is not possible to give to each
department an equal power of self-defense. In republican government, the legislative authority
necessarily predominates."
One may accurately claim that the judiciary has historically been the weakest of the three
branches. In fact, its power to exercise judicial review its sole meaningful check on the other
two branches is not explicitly granted by the U.S. Constitution. The U.S. Supreme Court
exercised its power to strike down congressional acts as unconstitutional only twice prior to the
Civil War: in Marbury v. Madison (1803) and Dred Scott v. Sandford (1857). While the Supreme
Court has since then made more extensive use of judicial review, it cannot be said to have as
much political power as either Congress or the President.

The first six presidents of the United States did not make extensive use of the veto power:
George Washington only vetoed two bills, James Monroe one, and John Adams, Thomas
Jefferson and John Quincy Adams none. James Madison, a firm believer in a strong executive,
vetoed seven bills. None of the first six Presidents, however, used the veto to direct national
policy. It was Andrew Jackson, the seventh President, who was the first to use the veto as a
political weapon. During his two terms in office, he vetoed twelve billsmore than all of his
predecessors combined. Furthermore, he defied the Supreme Court in enforcing the policy of
Indian removal; he famously said, "John Marshall has made his decision. Now let him enforce

Some of Jackson's successors made no use of the veto power, while others used it intermittently.
It was only after the Civil War that presidents began to use the power to truly counterbalance
Congress. Andrew Johnson's struggles with Congress are particularly notable. Johnson, a
Democrat, vetoed several Reconstruction bills passed by the "Radical Republicans." Congress,
however, managed to override fifteen of Johnson's twenty-nine vetoes. Furthermore, it attempted
to curb the power of the presidency by passing the Tenure of Office Act. The Act required Senate
approval for the dismissal of senior Cabinet officials. When Johnson deliberately violated the
Act, which he felt was unconstitutional (Supreme Court decisions later vindicated such a
position), the House of Representatives impeached him; he was acquitted in the Senate by one

Grover Cleveland worked to restore power to the Presidency after Andrew Johnson's

Johnson's impeachment was perceived to have done great damage to the presidency, which came
to be almost subordinate to Congress. Some believed that the president would become a mere
figurehead, with the Speaker of the House of Representatives becoming a de facto Prime
Minister. Grover Cleveland, the first Democratic President following Johnson, attempted to
restore the power of his office. During his first term, he vetoed over four hundred billstwice as
many bills as his twenty-one predecessors combined. He also began to suspend bureaucrats who
were appointed as a result of the patronage system, replacing them with more "deserving"
individuals. The Senate, however, refused to confirm many new nominations, instead demanding
that Cleveland turn over the confidential records relating to the suspensions. Cleveland
steadfastly refused, asserting, "These suspensions are my executive acts ... I am not responsible
to the Senate, and I am unwilling to submit my actions to them for judgment." Cleveland's
popular support forced the Senate to back down and confirm the nominees. Furthermore,
Congress finally repealed the controversial Tenure of Office Act that had been passed during the
Johnson Administration. Overall, this meant that Cleveland's Administration marked the end of
presidential subordination.

Several twentieth-century presidents have attempted to expand the power of the presidency.
Theodore Roosevelt, for instance, claimed that the president was permitted to do whatever was
not explicitly prohibited by the lawin direct contrast to his immediate successor, William
Howard Taft. Franklin Delano Roosevelt held considerable power during the Great Depression.
Congress had granted Franklin Roosevelt sweeping authority; in Panama Refining v. Ryan, the
Court for the first time struck down a Congressional delegation of power as violative of the
doctrine of separation of powers. The aforementioned Schechter Poultry Corp. v. United States,
another separation of powers case, was also decided during Franklin Roosevelt's presidency. In
response to many unfavorable Supreme Court decisions, Roosevelt introduced a Court Packing
plan, under which more seats would be added to the Supreme Court for the president to fill. Such
a plan (which was defeated in Congress) would have seriously undermined the judiciary's
independence and power.

Richard Nixonwhose presidency is sometimes described as "Imperial" (see Imperial

Presidency)used national security as a basis for his expansion of power. He asserted, for
example, that "the inherent power of the President to safeguard the security of the nation"
authorized him to order a wiretap without a judge's warrant. Nixon also asserted that "executive
privilege" shielded him from all legislative oversight; furthermore, he impounded federal funds
(that is to say, he refused to spend money that Congress had appropriated for government
programs). In the specific cases aforementioned, however, the Supreme Court ruled against
Nixon. This was also because of an ongoing criminal investigation into the Watergate tapes, even
though they acknowledged the general need for executive privilege. Since then, Nixon's
successors have sometimes asserted that they may act in the interests of national security or that
executive privilege shields them from Congressional oversight. Though such claims have in
general been more limited than Nixon's, one may still conclude that the presidency's power has
been greatly augmented since the eighteenth and nineteenth centuries.

The rise of the presidency was also aided by the rise of a modern media establishment. In an era
of limited attention spans and shortened time for television news, it has become easier for
journalists to focus on the actions of one centralized, decisive figurethe presidentthan on the
actions of a loose, decentralized, milling chamber of equals, like the Senate or House.[3]
Views on separation of powers
The division of powers in the United States has often been criticized as promoting inefficiency;
when different parties hold Congress and the presidency, a lack of co-operation can deadlock the
legislative process. English author Walter Bagehot famously criticized the U.S. system on these
grounds in his 1867 book The English Constitution, specifically noting the events during the
administration of Andrew Johnson. Several individuals have proposed that a parliamentary
systemin which the same party or coalition of parties controls both the executive and the
legislaturewould function more efficiently. Advocates of a parliamentary system have included
President Woodrow Wilson. In comparing the English parliamentary system with the American
system, Bagehot wrote:

"The English Constitution, in a word, is framed on the principle of choosing a single

sovereign authority, and making it good: the American, upon the principle of having
many sovereign authorities, and hoping that the multitude may atone for their

Many political scientists believe that separation of powers is a decisive factor in what they see as
a limited degree of American exceptionalism. In particular, John Kingdon made this argument,
claiming that separation of powers contributed to the development of a unique political structure
in the United States. He attributes the unusually large number of interest groups active in the
United States, in part, to the separation of powers; it gives groups more places to try to influence,
and creates more potential group activity. He also cites its complexity as one of the reasons for
lower citizen participation.

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

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

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

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

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

See also
Constitution of the Roman Republic
Fourth branch of government
Signing statement
The Imperial Presidency
Unitary executive theory

Davis, Z. (2001). "Presidential Vetoes, 19892000."
Dean, J. W. (2004). "The U.S. Supreme Court and The Imperial Presidency."
Kilman, J. & Costello, G. (Eds). (2000). The Constitution of the United States of
America: Analysis and Interpretation.
Kunhardt, P. B., Jr., Kunhardt, P. B., III & Kunhardt, P. W. (1999). The American
President. New York: Penguin.www.
Madison, J. (1788). "These Departments Should Not Be So Far Separated as to Have No
Constitutional Control Over Each Other."
Madison, J. (1788). "The Particular Structure of the New Government and the
Distribution of Power Among Its Different Parts."
Mount, S. J. J. (2003). "Rewriting the Constitution."

1. ^ |The Constitution of the

United States of America: Analysis and Interpretation pp.436-437
2. ^ Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000)
3. ^ Heywood, Andrew (2008). The Essentials of UK Politics. Palgrave Macmillan.