8 Key excerpts on "Separation of Powers USA"

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  Understanding Public Law

  • Hilaire Barnett(Author)
  • 2009(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  It has been seen above that there are many overlaps in both personnel and functions under the UK Constitution. However, while these may be criticised as being contrary to an ideal separation of powers, what must be noted is that there are many ‘checks and balances’ within the system, which are designed to prevent an abuse of power.

  Returning to the diagram representing the US’s Constitution, it might be concluded that the British Constitution is arranged in the following manner:

  Figure 3.5

  Summary

  The separation of powers is a key constitutional concept. The separation of powers explains the personnel, functions and powers of the three major institutions of the state: the executive, the legislature and the judiciary. The principal purpose it serves is to prevent the concentration of powers in one institution. Under a written constitution the separation of powers will be clearly defined. Under the UK Constitution, however, this is not the case and it is necessary to examine the relationship between the executive and legislature, legislature and judiciary, and judiciary and executive in order to ascertain the extent to which the concept applies. Undertaking this exercise reveals that while the separation of powers is not as clear and certain as it would be under a written constitution, there are nevertheless sufficient checks and balances that prevent the abuse of power. Accordingly, it is not inaccurate to state that the separation of powers is a concept respected under the constitution.

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  Key Ideas in Law: The Rule of Law and the Separation of Powers

  • Jack Beatson(Author)
  • 2021(Publication Date)
  • Hart Publishing

    (Publisher)

  8 The Separation of Powers and the Balance of Responsibilities

  This chapter considers the way the separation of powers is reflected in our constitutional arrangements, whether such separation is fostered by a category of statutes recognised as ‘constitutional’, and the balance of responsibilities between courts and other branches of the state.

  I. THE SEPARATION OF POWERS

  Classically the three locations of constitutional powers and functions are those of the legislative, the executive, and the judicial branches of the state. Sir Stephen Sedley 2015, 190, considers that today three further locations could be added, namely the established church, the media, and the security and intelligence services. While there is some force in his view that each ‘possesses a sufficient measure of autonomy to rank to some degree as a discrete element in the governance of the state’, this book only considers the three classical locations.

  What some have described as the pure or fundamental form of the principle requires an a priori classification of powers as either legislative, executive or judicial to determine which institution of the state should exercise a given function completely independently of the others. But as Sedley 2015, 172, stated:

  Plainly this is unreal: the judiciary has to be appointed and paid by a body other than itself; the law it interprets and applies has to be made in substantial part by a legislature; the legislature is largely dependent for its own functioning on the executive and political heads …; the executive requires a parliamentary mandate for much of what it does; and the courts have to be able to say whether the executive is acting within its mandate.

  France and the United States of America have been the states with forms of government closest to the pure form of the separation of powers. Until 1958, in France ministers could not sit in the legislature and the ordinary courts did not determine whether the legislature was acting constitutionally or whether the acts and omissions of the executive were lawful. Until the creation of the Conseil Constitutionnel, the Constitutional Council, in that year, the legislature itself determined whether it was acting constitutionally. The Conseil d’État, the Administrative Council, still determines the legality of executive action. The United States constitution seeks to avoid concentrations of power by forbidding those who hold executive office from being members of the legislature and vice versa, but it is the federal courts which have the ability to determine whether legislative and executive acts are legal and thus to restrain their exercises of power. In many other democracies with balanced constitutions, however, government ministers with executive responsibility are also members of the legislature and accountable to it, as well as to the electorate and to the ordinary courts.

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  Optimize Public Law

  • Ursula Smartt(Author)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  checks and balances’.

  The United States Constitution adheres closely to the Separation of Powers: all three branches (or powers) are systematically split between the Executive (the President), the Legislative (Congress) and the Judiciary (the Supreme Court). The President cannot serve in Congress and serving Congressmen cannot be a Supreme Court judge. Montesquieu’s pure theory is then realised in American politics in that no branch becomes more powerful than the other two, so that a balance is achieved. The American Constitution clearly states what the Executive, the Legislative and the Judiciary can do. Article I grants powers to the Legislature; Article II gives Executive power to the President; and Article III creates an independent Judiciary. Congress is elected separately from the President, who does not sit as part of the Legislature. The Supreme Court can declare the acts of both Congress and President to be unconstitutional. The American Constitution, then, prescribes very clear powers for the Executive (President’s office), the Legislative (Congress) and the Judiciary (Supreme Court). Each section’s powers is restricted and well defined and crossover between the three sectors of politics is avoided. This is not so clear in the United Kingdom. Therefore, checks and balances have to be in place, particularly of the Executive. In summary, the American constitutional model has separation as part of the American Constitution, which is less clear-cut in the United Kingdom.

  Relationship between Executive and Legislature

  In the UK (and other common law jurisdictions), the Executive and Legislature are closely entwined. The Prime Minister and a majority of his or her Ministers are Members of Parliament (MPs) and sit in the House of Commons. This means that the Prime Minister is an active member of the Legislative. He or she can vote for or against a bill in Parliament but nonetheless is also the leading member of the Executive. The Executive is therefore present at the heart of Parliament. Professor Bogdanor believes that the UK’s integration of Executive and Legislature provide stability and efficiency in the operation of Government (see: Bogdanor, V., 2006, The Sovereignty of Parliament and the Rule of Law). This means that the Prime Minister is usually head of the Executive branch of Government as well as leader of the majority party in the Legislature. Additionally, Parliament may delegate law-making powers to the Government through powers to draft secondary or delegated legislation (see Chapter 6

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  The Constitution of the United States

  A Primer for the People

  • David P. Currie(Author)
  • 2010(Publication Date)
  • University of Chicago Press

    (Publisher)

  4 The Separation of Powers

  THE FIRST THREE ARTICLES of the Constitution vest the federal legislative power in Congress, the executive power in the President, and the judicial power in the courts. The boundaries between legislative, executive, and judicial powers, however, are not always easy to discern.

  THE RULE OF LAW

  The border between congressional and presidential powers occupied the Supreme Court in the famous 1952 case of Youngstown Sheet & Tube Co. v. Sawyer .1 During the Korean War, the steelworkers threatened to strike for better terms of employment. In order to avoid interruption of the flow of military supplies, President Truman took temporary possession of the steel mills, for it was illegal to strike against the government. On a complaint filed by the mill owners, the Supreme Court held that the President had acted unconstitutionally.

  Four of the nine Justices were of the opinion that Congress had implicitly forbidden seizure of the steel mills by prescribing a distinct remedy for strikes that endangered national security.2 For these judges it was sufficient to invoke the fundamental principle of the supremacy of law. Article I’s grant of lawmaking authority to Congress implies that the executive and judicial branches are bound by the statutes that Congress enacts. This implication is underscored by articles VI and II, which respectively designate such statutes as “supreme law of the land” and direct the President to “take care” that they “be faithfully executed.”

  It is true that Congress has no power to deprive the President of the authority the Constitution gives him. Only the President, for example, may be commander in chief of the armed forces.3 How the President executes the laws, on the other hand, may to some extent be determined by legislation pursuant to the Necessary and Proper Clause.4 Thus in the narrowest sense the Youngstown

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  American Constitutional Law

  Introductory Essays and Selected Cases

  • Donald Grier Stephenson Jr., Alpheus Thomas Mason(Authors)
  • 2021(Publication Date)
  • Routledge

    (Publisher)

  Chapter Nine explains.) State governments are likewise forbidden to do specific things. Article I, Section 10, declares that a state may not enact ex post facto laws, impair the obligation of contracts, coin money, emit bills of credit, or enter into any treaty or alliance with a foreign state. Chief Justice Marshall called parts of this section, the only one in the original Constitution limiting state power, “a bill of rights for the people of the states.” Nonetheless, the Constitution provides no definition of either powers or limitations, nor does the Constitution state how its words are to be interpreted.

  Separation and Sharing of Powers . Government is also circumscribed in less specific ways. The Constitution divides power, even as it confers it. Congress is endowed with “legislative” power; it may not, therefore (except as a result of a specific grant or by implication), exercise executive or judicial power. The same restrictions apply to the other branches of the national government: the terms judicial power and executive power, like legislative power, have a technical meaning. In the exercise of their respective functions, neither Congress, nor the president, nor the judiciary may, under the principle of separation of powers, encroach on fields allocated to the other branches of government. Instead of requiring that the departments be kept absolutely separate and distinct, however, the Constitution mingles their functions. Congress is granted legislative power, but the grant is not exclusive. Lawmaking is shared by the president through the veto. The appointing authority is vested in the president, but for many appointments the Senate must give its advice and consent.

  Federalism . The second power-limiting principle, federalism

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  The Political Theory of The Federalist

  • David F. Epstein(Author)
  • 2008(Publication Date)
  • University of Chicago Press

    (Publisher)

  Much of the confusion can be traced to the fact that the three most famous accounts of the separation of powers—in Locke, Montesquieu, and The Federalist—all move beyond this primary meaning of the doctrine. Locke’s discussion of “Prerogative” expands the role of the “executive” beyond what that term would literally imply. 11 Montesquieu insists that the executive must be able to “stop” the legislature by vetoing its laws; distinguishes (as Locke did not) a ’judicial” power separate from the executive; then substitutes the House of Lords for the judiciary as one of the three powers; and finally suggests that the “distribution” of powers need not be a separation in the sense first suggested. 12 Neither of these authors regarded separation of powers as a complete solution to the problem it addresses; and we shall see that this is also true of The Federalist. Legislative Vortex Federalist 47 attempts to assure the Constitution’s critics that the proposed government does not violate separation of powers. To this end, Madison explains that according to Montesquieu’s theory and in British and American practice, separation of powers means not that a total separation is required but rather “no more than this,” that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. (47, pp. 302–3) Thus branches which are separate can still have some “partial agency in” or “control over” each other, as when (in Britain) the executive acts as a branch of the legislature, or (in American states) the legislature elects the executive. But Madison concludes that in fact some states have “violated” the “fundamental principle under consideration” “by too great a mixture, and even an actual consolidation of the different powers” (47, p. 307)-implying that the interpretation of the principle quoted above was too loose

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  The Administrative State

  A Study of the Political Theory of American Public Administration

  • Dwight Waldo(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  37 but inadequately recognized: that the members of the Committee had no reverence for the threefold scheme in the George Wickersham-Elihu Root manner, that in its case acceptance of separation of powers was a strategic maneuver. In the interest of building up the Presidency, they sought to make their own the stereotypes and emotions historically used to oppose presidential aggrandizement.

  The constitutional principle of the separation of powers, reported the Committee, places "in the President, and in the President alone, the whole executive power of the Government of the United States." 38 However, "the responsibility of the President for ’the executive Power’ is impaired through the multiplicity and confusion of agencies which render effective action impossible." 39 Particularly is the principle of separation of powers impaired by the "new and headless ’fourth branch’ of the Government." These independent establishments "do violence to the basic theory of the American Constitution that there should be three major branches of the Government and only three." 40

  The independent agencies enjoy power without responsibility, and "leave the President with responsibility without power." Plainly we are required "to make effective management possible by restoring the President to his proper place as Chief Executive. . . ." 41 If this is done the principle of separation of powers will be restored. "The preservation of the principle of the full accountability of the executive to the Congress is an essential part of our republican system." 42 Present confusions impair this principle; the changes suggested will restore it.

  "Brookings."—Opposed to President’s Committee’s position was, of course, the group more or less closely identified with the Brookings Institution. This group took positions with regard to the separation of powers stemming from, or at least similar to, those of the first director of the Institute for Government Research, W. F. Willoughby. The President’s Committee finds that the Founders intended the President to be responsible for administration because he is made the chief "executive"; the Brookings group believes that "executive" and "administrative" must be distinguished, and that the Framers gave administrative power chiefly to Congress.

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  Text, Cases and Materials on Public Law and Human Rights

  • Helen Fenwick, Gavin Phillipson, Alexander Williams(Authors)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  The French system has features of both the presidential and the parliamentary models.… The President is far from being merely a titular Head of State. Since 1962 he or she is directly elected by the people, has arbitral powers under art 5, and emergency powers under art 16, and signs the regulations emanating from the executive’s very extensive lawmaking powers (arts 37, 13). In association with the government he or she can present bills to the people to enact by referendum, thereby bypassing the parliament, and can dissolve the National Assembly and call new elections. By contrast, the legislature is trammelled. Its power to enact laws is laid down in terms not merely of form but of subject-matter, and (under art 41) the government may block any bill which does not fall within the areas listed in art 34. Much of its internal procedure is now defined in the constitution and this gives the Prime Minister and his or her Cabinet great procedural advantages over the Opposition.…

  …

  The Judicial Branch

  When it comes to the judiciary, separation of powers is taken quite seriously. … In all the systems here dealt with, judges are independent and irremovable … In the USA and UK it is not stated but is the case.

  The only topic which merits brief discussion here is the relation between the constitution, the courts, and the legislature. For almost 200 years the USA has led the way in discussion and practice in this area … Art VI provides that the Constitution and federal laws made under it and treaties ‘shall be the supreme law of the land’ and shall bind state judges: thus the supremacy of federal over state law is clearly stated. But nothing expressly subordinates federal legislation to the federal constitution and art III on the judicial power does not in so many words confer jurisdiction to do this. Nonetheless the Supreme Court assumed such a jurisdiction and in 1803 held that ‘an Act of the Legislature repugnant to the Constitution is void’ (Marbury v Madison). As a result, any court of general jurisdiction seems to have power to declare any statute unconstitutional.…

  The general continental European pattern is much more recent (dating from the 1920s) and tends to differ from the American model in a number of respects. First, the whole topic is expressly dealt with in the constitutional text. Second, the tribunal given a power of constitutional review is quite separate from the ordinary courts of general jurisdiction. Third, and a consequence of this, its jurisdiction is exclusive: other courts cannot decide issues of constitutionality but must, where such questions need to be settled to dispose of the case in hand, refer them to the Constitutional Court. Fourth, process may be instituted in a number of different ways: by ordinary courts in the manner just described; by ordinary citizens complaining that their individual constitutional rights are being infringed by some legislation; by certain high officials (President, Speaker etc.) seeking, in the absence of any particular dispute, to obtain a general and ‘abstract’ ruling on the constitutionality of a statute; and occasionally the constitutional tribunal is even given the power to review legislation on its own initiative. Finally, the Court’s decision that a particular legislative provision is unconstitutional is itself given the force of law so as to bind all courts and officials …

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