Separation of Powers in U.S. Government

The Founding Fathers of the early American Constitution examined various political and modern theories as their guide in establishing a government that truly supports their aims and aspirations as a people who wish to be rid of the destructive clutches of the British Empire, one of which is the principle of separation of powers advanced by Baron de Montesquieu.This paper will examine the concept of separation of power and its evolution since the start of the Philadelphia Convention in 1787 up to the present.Separation of PowersThe concept of separation of power as theorized by Baron de Montesquieu states that the “legislative, executive, and judicial power function of the government—the power to make laws, the power to carry out laws, and the power to uphold the laws—should rest with the different branches of government” thus, reducing the possibility of tyranny. (Johnson, Aldrich, Miller et al, 1990, 45). In the adoption of a Federal government in 1787’s American Constitution, de Montesquieu’s theory of separation of power was approved, thus, drawing line separating the powers held by each of the branches of government.The three branches of government were allocated with its own powers some of which are shared among them. The system was designed to reduce the risk of abusing its power by a single branch acting independently from the other branches. According to Johnson et al (1990, 51) no branch can carry out its powers without some degree of cooperation from the other branches.In a dissenting opinion of Justice Louis Brandeis in Myers v. United States,272 U.S. 52, 293 (1926) opined that 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 governmental powers among three departments, to save the people from autocracy.”It is this concept that minimizes the risk of one branch to completely take over the government or stray too far politically from the other branches making this design as a  key factor in the Constitutions’ survival, assuring evolution in government rather than revolution.Though this was the case, due to Constitutional provisions couched in general terms, tensions and conflicts regarding individual interpretation by the branches arise.The Constitutional ProvisionsThe American Bar Association painstakingly listed the power of each branch and its relation to the other branches.There are various provisions in the Federal Constitution that outlines the blending power of the check and balance or the separation of powers.The first three Articles found in the Constitution define the powers of each branch. Article 1 defines Congress’ powers; Article II defines the Executive branch’s power; and the Judicial Power is defined in Article III.Federal JudiciaryAlexander Hamilton’s The Federalist Paper revealed that among the three branches it is the judiciary that is the least powerful branch. A lifetime tenure and good behavior as well as a guaranteed salary is the Constitution’s protection for the judiciary to maintain its independence. The judiciary possess the power of judicial review of all actions taken by executive or Congress. It was in a landmark case of Marbury v. Madison (1803) that the judicial review, as a power of the Courts, was first exercised and it was also in this case that Supreme Court first coined the word and established its presence as a formidable branch in the Federal System.  The judicial power is a passive power for it needs “cases and controversies” brought before the court for it to exercises such power (Separation of Power, n.d.).The judicial power of individual judges is limited to the following: “[j]udges must explain their decisions in written opinions; [j]udges most follow the precedents established by the decisions of higher courts; and [j]udges’ decisions are subject to review by courts of appeals” (Separation of Power, n.d.).The executive and legislative branches possessed the following powers to check or balance the power of the judiciary. The following: [t]he federal courts are staffed by judges nominated by the President; [t]he courts rely upon the executive branch for enforcement of their decisions; [c]ongress has control over the judiciary’s budget (although it cannot reduce a judge’s salary); [c]ongress has the power to impeach federal judges who misbehave in office; and [c]ongress may begin the process of amending the Constitution if it disagrees with the judiciary’s interpretation of the Constitution” (Separation of Power, n.d.).CongressIn Congress, the Constitution provides numerous powers, to wit: budgetary power, “including the authority to raise taxes, borrow money, and spend money; [p]ower to declare war and to raise and support military forces; [p]ower to regulate immigration, the mail, patents and copyrights, and commerce between the states and with foreign countries; and [p]ower to establish federal courts below the United States Supreme Court.” Also, the “Constitution provides that Congress has the power to pass any law “necessary and proper” to give effect to its named powers (Separation of Power, n.d.).Congress’ power could be checked through the Presidential veto on any proposed legislation; and the Supreme Court’s power to review the constitutionality of a law if it is challenged in a case brought before the Court.The ExecutiveAside from the oversight power to federal agencies that implement the passed law of Congress, the Executive through the President possessed the following powers: “[p]ower as Commander in Chief of the armed forces; [p]ower to make treaties, nominate judges to the federal judiciary, and appoint officers of the government, subject to the advice and consent of the Senate; and [p]ower to pardon individuals convicted of federal crimes.”The Congress and the Court could check the Executive through the following modes: “[t]he Senate’s power to ratify treaties the President has signed and to consent to the President’s nominees for federal judgeships and other government positions; “[t]he power of Congress to impeach and convict the President for ‘treason, bribery, or other high crimes and misdemeanors;’ [t]he federal judiciary’s power to declare executive actions unconstitutional if they are challenged in court” (Separation of Power, n.d.).The Conflict Surrounding the Separation of PowersJames Madison’s Federalist Paper No. 51 stated that “[a]mbition must be made to counteract ambition.” Thus, the concept of separation of powers is not designed to maximize efficiency but rather to maximize freedom.Through the years various conflicts were witnessed by the American People on the issue of separation of powers which stem from the various interpretations of the branches concerned on a given Constitutional provision, couched in general terms, prone to abuse.Executive EncroachmentTwo views on the “executive powers have been articulated by past presidents.  One view, the “strong president” view, favored by presidents such as Theodore Roosevelt essentially held that presidents may do anything not specifically prohibited by the Constitution.  The other, “weak president” view, favored by presidents such as Howard Taft, held that presidents may only exercise powers specifically granted by the Constitution or delegated to the president by Congress under one of its enumerated powers” (Exploring Constitutional Conflicts: The Separation of Powers. n.d).In the case of “Youngstown Sheet ; Tube Co. v Sawyer (1952) arose when President Harry Truman, responding to labor unrest at the nation’s steel mills during the Korean War, seized control of the mills.”  In a close decision, the Supreme Court held that the President’s power is not limited to those powers expressly granted in Article II. In the case of Dames and More v Regan (1981) “considered the constitutionality of executive orders issued by President Jimmy Carter directing claims by Americans against Iran to a specially-created tribunal. The Court, using a pragmatic rather than literalist approach, found the executive orders to be a constitutional exercise of the President’s Article II powers” (Exploring Constitutional Conflicts: The Separation of Powers. n.d).Congressional EncroachmentsIn INS v Chadha (1983), the Court declared the resolution passed by Congress to nullify by resolution a disapproved action by an agency of the executive branch for its failure to comply with the requirements for legislation spelled out in Article I, Section 7 of the Constitution. In Bowsher v Synar (1986), the Court invalidated a provision of the Balanced Budget Act that authorized the U.S. Comptroller General to impound funds appropriated for domestic or military use after the determination of a deficit by the federal budget  . The Court reasoned that by allowing the US Comptroller General is “in [the] essence [of] a legislative veto.”  Morrison v Olson the Court considered the constitutionality of the “Independent Counsel” (or “special prosecutor”) provisions in the Ethics in Government Act as not “an attempt by any branch to increase its own powers at the expense of another branch, and that the executive branch maintained “meaningful” controls over the counsel’s exercise of his or her authority” (Exploring Constitutional Conflicts: The Separation of Powers. n.d).Executive Privilege and ImmunitiesExecutive privilege, the right of the President to withhold certain information sought by another branch of government, was first claimed by President Jefferson in response to a subpoena from John Marshall in the famous treason trial of Aaron Burr.  The Supreme Court’s first major pronouncement on the issue, however, did not come until 1974 in United States v Richard Nixon, which involved the Watergate Scandal. The Court held that  the Constitution does indeed contain an executive privilege which was “presumptive” and not absolute.  Balancing the interests in the Nixon case, the Court opined that the privilege do not  extend to the requested Watergate tapes  Finally, in Clinton v Jones (1997), the Court rejected President Clinton’s argument that the Constitution immunizes  him from suits for money damages for acts committed before assuming the presidency.  The case arose when Paula Jones filed a suit alleging sexual harassment by Clinton in an Arkansas hotel room in 1991 while Clinton served as Governor of Arkansas” (Exploring Constitutional Conflicts: The Separation of Powers. n.d).Congressional Immunity under the Speech and Debate ClauseThe Federal Constitutional Framers “sought in various ways to guarantee the independence of each of the three branches.  The President was protected against criminal prosecutions while in office, answerable only in an impeachment trial with a super-majority required for a conviction.  Members of the federal judiciary were given lifetime tenure, with a guarantee that their compensation would be maintained.  To ensure free discussion of controversial issues in Congress, the framers immunized members of Congress from liability for statements made during a House debate:  for their ‘speech or debate’ they “shall not be questioned in any other place. In 1979, in Hutchinson v Proxmire, the Court considered whether the immunity for Senate and House debate extended beyond the floor to cover press releases and statements released to the media.  The Court concluded that the Speech and Debate Clause protected only official congressional business, not statements for public consumption” (Exploring Constitutional Conflicts: The Separation of Powers. n.d).Congressional Encroachment on Judicial Powers“In Ex Parte McCardle (1868) the Court decided it lacked jurisdiction to consider the habeas corpus petition of William McCardle, a Vicksburg, Mississippi newspaper editor arrested by military official for writing incendiary editorials about the federal officers then in control of Mississippi during Reconstruction.  Although McCardle made his petition under the 1867 Habeas Corpus Act, Congress repealed the provision authorizing McCardle’s petition AFTER the Court had heard arguments in his appeal.  Although it was obvious that Congress repealed the provision in an attempt to specifically deprive McCarldle of the opportunity to gain release from military custody, the Court nonetheless upheld the validity of the Act and found itself without jurisdiction “(Exploring Constitutional Conflicts: The Separation of Powers. n.d).ConclusionThe concept of the Separation of Power has created a dynamic, vibrant and dynamic democracy such as that of the United States. It provides powers for each of the branches and these powers were to be used not in isolation but in collaboration with other branches.This concept maintained our individual freedoms from the tyranny or abuses that could be wrecked by any of the three branches in our government.Indeed, James Madison’s Federalist Paper No. 51 is enlightening when he stated that “[a]mbition must be made to counteract ambition.” Thus, the concept of separation of powers is not designed to maximize efficiency; but designed to maximize freedom.

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