Separation of Powers USA

10 Key excerpts on "Separation of Powers USA"

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  General Theory of Law and State

  • Hans Kelsen(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  III. The Separation of Powers

  A. The Concept of “Separation of powers”

  The judicial review of legislation is an obvious encroachment upon the principle of separation of powers. This principle lies at the basis of the American Constitution and is considered to be a specific element of democracy. It has been formulated as follows by the Supreme Court of the United States: “that all the powers intrusted to government, whether State or national, are divided into the three grand departments, the executive, the legislative and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other.”†

  The concept of “separation of powers” designates a principle of political organization. It presupposes that the three so-called powers can be determined as three distinct coordinated functions of the State, and that it is possible to define boundary lines separating each of these three functions from the others. But this presupposition is not borne out by the facts. As we have seen, there are not three but two basic functions of the State: creation and application (execution) of law, and these functions are not coordinated but sub- and supra-ordinated. Further, it is not possible to define boundary lines separating these functions from each other, since the distinction between creation and application of law — underlying the dualism of legislative and executive power (in the broadest sense) — has only a relative character, most acts of State being at the same time law-creating and law-applying acts. It is impossible to assign the creation of law to one organ and the application (execution) of law to another so exclusively that no organ would fulfill both functions simultaneously. It is hardly possible, and at any rate not desirable, to reserve even legislation — which is only a certain kind of law-creation — to a “separate body of public servants” and to exclude all the other organs from this function.

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  Unlocking Constitutional and Administrative Law

  • Mark Ryan, Steve Foster(Authors)
  • 2023(Publication Date)
  • Routledge

    (Publisher)

  Under a partial separation of powers the objective is to avoid a concentration of power. This is achieved not by an absolute separation and isolation of the three functions, but instead through the creation of a number of checks and balances between them. In other words, one institution may well interfere with the (constitutional) function of another. For example, in the Republic of Ireland, the Oireachtas as the legislature is responsible for enacting laws. Under Art 34 of the Irish Constitution, however, the Irish Supreme Court may declare legislation legally unconstitutional and therefore null and void. Moreover, under Art 26 the President of Ireland (a formal and typically ceremonial aspect of the executive) may refer a Bill that has not yet been signed (and so yet to become an Act) to the Supreme Court in order to determine whether or not it is unconstitutional. If the Bill, or any part of it, is deemed unconstitutional, the Bill cannot become law. This therefore frustrates the legislature in its function of law-making.

  Similarly, the doctrine of the separation of powers is clearly evident in the United States Constitution as it is based on a subtle set of checks and balances. For instance, the President (executive) can, temporarily at least, check the legislature in the context of legislation by vetoing a Bill which has successfully passed through Congress. Ultimately, however, the latter can overturn the presidential veto by a two-thirds majority in each House. In addition, in terms of appointments to the Supreme Court, the Senate (the second chamber of Congress) must confirm a presidential nomination (an executive decision) of a proposed justice of the Supreme Court.

  5.5.3 To provide efficient government

  At one level the doctrine of the separation of powers helps to achieve efficient government. In short, allocating definite functions to specific institutions staffed with particular expertise (eg government which is expert at administering and the judiciary which is expert at assessing evidence and judging), necessarily provides efficient government.

  5.5.4 To safeguard the independence of the judiciary

  The separation of powers subsumes the fundamental notion that the judiciary should be constitutionally independent. In a democratic constitution it is of paramount importance that the judges – who form part of the court system – are independent, impartial and free from interference from the other branches of the state (and in particular the executive). The principle of the independence of the judiciary embraces, inter alia, the notion that the judiciary must be free to determine disputes before them strictly in accordance with the law (see Chapter 13

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  Political Political Theory

  Essays on Institutions

  • Jeremy Waldron(Author)
  • 2016(Publication Date)
  • Harvard University Press

    (Publisher)

  CHAPTER THREE

  Separation of Powers and the Rule of Law

  MY TOPIC FOR this chapter is the separation of powers, conceived as a political principle for evaluating the legal and constitutional arrangements of a modern state. What is this principle, and why is it important? The question takes us in interesting directions if we distinguish the separation of powers from a couple of other important constitutional ideas that are commonly associated with it. The first of these is the principle of the dispersal of power—a principle that counsels us to avoid excessive concentrations of political power in the hands of any one person, group, or agency. The second is the principle of checks and balances—a principle that holds that the exercise of power by any one power-holder needs to be balanced and checked by the exercise of power by other power-holders. Does the principle of the separation of powers have any meaning over and above these two principles? I think it does, and in this chapter I want to explore aspects of the separation of powers that are independent of what we value in these two other principles.

  The separation of powers counsels a qualitative separation of the different functions of government—for example, legislation, adjudication, and executive administration. But the justification for this separation is not made clear in the canonical literature of seventeenth- and eighteenth-century political theory: Montesquieu’s “justifications,” for example, were mostly tautologies.1 And in the spirit of those tautologies, modern constitutionalism has, until recently, taken the separation of powers for granted. I mean it takes for granted that the separation of powers is necessary to avoid tyranny, but it does not explain why. I think a qualitative separation is

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  The American Polity

  Essays On The Theory And Practice Of Constitutional Government

  • Edward J. Erler(Author)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  Chapter Four The Separation of Powers in the Administrative State

  “But because those Laws which are constantly to be Executed, and whose force is always to continue, may be made in little time; therefore there is no need, that the Legislative should be always in being, not having always business to do. And because it may be too great a temptation to humane frailty apt to grasp at Power, for the same Persons who have the Power of making Laws, to have also in their hands the power to execute them, whereby they may exempt themselves from Obedience to the Laws they make, and suit the Law, both in its making and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the Community, contrary to end of Society and Government.”

  —John Locke1

  “If there is a principle in our Constitution, indeed in any free Constitution more sacred than another, it is that which separates the legislative, executive and judicial powers. If there is any point in which the separation of the legislative and executive powers ought to be maintained with great caution, it is that which relates to officers and offices.”

  —James Madison2

  Throughout American history, the separation of powers doctrine has indeed been held almost as a “sacred principle” of constitutional government. There have been, of course, many disputes about the precise configuration of the separated powers3 but rarely any doubts about the efficacy of the principle itself. Today, however, the principle is vigorously challenged in the name of efficient government—or more precisely, in the name of the administrative state. As one political scientist has remarked, “[t]he fundamental problem, in trying to make the government of the United States work effectively, is not to preserve the separation of powers but to overcome it. For anything of consequence to be accomplished, the executive and legislative branches must be brought from confrontation into a reasonable degree of harmony … [Confrontation, stalemate and deadlock … frequently leave the government of the United States impotent to cope with complex problems.”4

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  The Power of Separation

  American Constitutionalism and the Myth of the Legislative Veto

  • Jessica Korn(Author)
  • 2020(Publication Date)
  • Princeton University Press

    (Publisher)

  Clearly, Publius expects the separation of powers system to foster particular institutional competences in the exercise of the several classes of power, as they may in their nature be legislative, executive, or judiciary. 15 But he resists those who would demand pure distinc-tions in the nature of different types of political powers, noting: Experience has instructed us that no skill in the science of govern-ment has yet been able to discriminate and define, with sufficient cer-tainty, its three great provinces—the legislative, executive, and judi-ciary. 16 Indeed, promoting a division of labor in the exercise of governmen-tal powers was not the only objective that led Publius to choose a tripartite system. By the time the Framers arrived in Philadelphia for the convention in 1787, theorists of liberal constitutionalism had al-ready agreed that the separation of powers was necessary for protect-ing individual liberty. Both Montesquieu and Locke had placed great stress on the separation of powers as a requisite for a rule of law in the public interest. 17 Montesquieu analyzed governmental power as con-sisting of three categories, explaining that all would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals. 18 16 THE SEPARATION OF POWERS DOCTRINE The Anti-Federalists attacked the tripartite structure in the proposed Constitution because they considered it untrue to Montesquieu's theory. They believed that the Constitution did not keep the three powers separated enough. It placed in the Senate, for example, an undue and dangerous mixture of the powers of government; the same body possessing legislative, executive, and judicial powers. The senate is a constituent branch of the legislature, it has judicial power in judging on impeachments.

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  The Supreme Court and the Presidency

  Struggles for Supremacy

  • Julie Novkov(Author)
  • 2013(Publication Date)
  • CQ Press

    (Publisher)

  21 Separation of Powers and Judicial Respect for Coordinate Branches T he Constitution provides more detail on and authorizes more power to the exec-utive branch than to the judiciary. Nonetheless, both in constitutional design and in practice, each branch holds broad authority largely separately from the other branches of government. The president does not resolve legal disputes, the Congress does not take action to put its laws into effect, and the Supreme Court does not legislate. This simple structural explanation is complicated, however, by two important caveats. First, each branch is subject to limits on its scope of authority that the other branches can CHAPTER 2 At left in photo is John W. Davis, one-time Democratic nominee for President of the United States, arriving at Supreme Court on May 13, 1952, with another member of his legal team to argue the constitutionality of the seizure of the steel industry by President Truman. At right is acting Attorney General Philip B. Perlman, who was the quarterback of the government forces who argued that the seizure was within the President’s constitutional authority and that the nation “face not merely an emergency but a threat to its actual existence.” Mr. Davis branded the seizure as “naked” trespass against the Constitution and presented his arguments with few interruptions. Mr. Perlman was subjected to a sharp bombardment of questions by the Supreme Court justices, but he could still smile as he left court. Source: © Bettmann/ CORBIS 22 T HE S UPREME C OURT AND THE P RESIDENCY : S TRUGGLES FOR S UPREMACY implement independently. The president does not make laws, but she or he can veto them. Congress cannot appoint executive officers or judges, but the Senate must confirm appointments.

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  Revisiting Waldo's Administrative State

  Constancy and Change in Public Administration

  • David H. Rosenbloom, Howard E. McCurdy, David H. Rosenbloom, Howard E. McCurdy(Authors)
  • 2006(Publication Date)
  • Georgetown University Press

    (Publisher)

  6 The Separation of Powers DAVID H. ROSENBLOOM 87 I n chapter 7 of The Administrative State, Dwight Waldo reviewed the contorted theories that scholars in the early public administration movement developed to explain the alignment of the two functions of governing, politics and administration, with the constitutional three-branch separation of powers. Waldo found their writings to be “hostile to the tripartite separation of powers,” unable to pass “the test of con-sistency,” and based on a “constitutional history [that] has been mis-read, distorted.” Their problem, to put it in more contemporary terms, is that two won’t go evenly into three. Waldo explains, “Almost with-out exception the [orthodox] writers accept it as plain fact that there are but two parts or functions in the governmental process: decision and execution, politics and administration; that administration is a realm of expertise from which politics can be and should be largely excluded.” 1 The orthodox solutions to the two function–three branch conun-drum generally required constitutional change or circumvention in the name of better administration. Strikingly, the more things change, the more they remain the same. When it comes to the separation of pow-ers, contemporary administrative prescriptions for reform and reorga-nization have much in common with orthodox thinking. This chapter reviews Waldo’s treatment of the separation of powers issue and demonstrates the manner in which the U.S. Congress and federal courts, beginning in the 1940s and 1950s, framed institutional responses to the administrative state that increased their roles in the administrative process. It then considers the challenges these devel-opments posed to public administrative theory, with its traditional emphasis on the subordination of federal agencies through execu-tive hierarchy.

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  A Companion to the United States Constitution and Its Amendments

  • John R. Vile(Author)
  • 2021(Publication Date)
  • Praeger

    (Publisher)

  The text of the Constitution consists of seven articles, most of which are subdivided into sections. Although the Constitution does not employ the specific phrase, the structure of the document reflects the doctrine of separation of powers. Thus the first three articles of the Constitution establish separate branches of the central or national government. Article I creates the legislative branch, Article II the executive branch, and Article III the judicial branch.

  This order is purposeful and instructive. Because they were creating a democratic, or representative, government that rested on what the Declaration of Independence called “the consent of the governed” and what the Constitution simply refers to as “We the People,” the authors of the Constitution logically began with the two branches that the people elected and then proceeded to the branch that the president appointed and that the Senate confirmed.

  This chapter focuses on Article I, which chiefly establishes and outlines the powers and limits of the legislative branch. Article I, Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, The Priority of the Legislative Branch

  The legislative branch had been the only branch of government under the Articles of Confederation. It was the first branch that delegates discussed at any length at the Constitutional Convention, and most of the delegates thought that it would continue to be the most powerful. The framers refused to entrust Congress—any more than the British Parliament—with complete sovereignty but limited it to exercising legislative powers “herein granted.”

  By vesting “legislative powers” in Congress (the first clauses of each of the first three Articles of the Constitution are often called vesting clauses), the Constitution limited the powers that it could delegate to the other branches. Schechter Poultry Corporation v. United States (1935) provided one of the best examples of this limitation. Congress had, under the National Industrial Recovery Act of 1933, allowed individual industries to establish binding codes of fair competition subject only to presidential approval. The Supreme Court invalidated this massive delegation of powers. However, the Supreme Court has generally been more generous in upholding congressional delegations of power in the area of foreign affairs. In United States v. Curtiss-Wright Export Corp.

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  Modern Systems of Government

  Exploring the Role of Bureaucrats and Politicians

  • Ali Farazmand(Author)
  • 1997(Publication Date)
  • SAGE Publications, Inc

    (Publisher)

  6 The U.S. Constitutional Separation of Powers and Federal Administration David H. Rosenbloom Like much of U.S. politics, the federal administration is often viewed as an exception to the institutional and political patterns that normally prevail in Western nations (see Wildavsky 1991 for a review). The bureaucracy has long been highly permeable and penetrated by relatively large numbers of political appointees (see Silberman 1993). It has very low prestige and politicians find it a viable scapegoat for a wide range of governmental shortcomings. Agencies can be quite powerful, but the executive branch is in no sense independent or autonomous. It is subject to substantial legisla-tive regulation and direction. Judicial involvement in federal adminis-tration is also quite pronounced. Indeed, studies of American bureaucratic politics often employ the concepts of subgovernments to denote coali-tions between agencies and legislative committees and partnerships between agencies and the courts (Lowi 1969; Rosenbloom 1987). The premise of this chapter is that the constitutional separation of powers is the fundamental fact of American national administration and a major reason 159 160 BUREAUCRATS IN PRESIDENTIAL SYSTEMS for its exceptionalism. The chapter analyzes contemporary constitutional doctrine regarding the separation of powers and the insdtutional dynamics of presidential, congressional, and judicial efforts to develop and maintain leverage over the bureaucracy. The Constitutional Framework of Federal Administration: Whose Bureaucracy is This, Anyway?^ Federal administration under the Constitution is an organizational theo-rist's nightmare. The Framers feared a strong, independent executive more than they foresaw the development of a vast federal administrative appa-ratus. It is worth remembering that there are now about as many civilian federal employees as there were people in the colonies on the eve of their independence.

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  The Powers of the Presidency

  • CQ Press(Author)
  • 2012(Publication Date)
  • CQ Press

    (Publisher)

  77 Of course, this stereotype neglects the enduring constitutional complications of a separation of powers system. Congress and the Presidency: Separate Branches Any discussion of the president’s influence over legislation must first recognize the essential differences between the branches. Above all, the Constitution grants to Congress the preponderance of power over national policy. Only Congress has the enumerated power to make the law, generate reve-nues, and appropriate funds, but as these measures are laws they would need presidential approval. The Constitution also establishes governing roles and creates policymaking dynamics that set Congress fundamentally far apart from the presidency. In addition, presidential agendas and prom-ises are constantly threatened (or potentially enhanced) by the constant possibility of majority party turnover in the House and Senate every two years. These structural factors have remained remarkably constant throughout history and are important to understanding why presidents succeed or fail in achieving their legislative goals. 78 Presidents and members of Congress reach office through entirely separate and distinct paths. The national electorate ideally gives the president a broader perspective on issues. In reality, presidents are elected by majorities that are attached disproportionately to one party and certain regions of the country. Presidents can certainly claim policy mandates upon victory, but would be wise to remember that millions of people voted against their ticket and campaign agenda. Members of Congress, by contrast, come to national government out of much smaller, localized constituencies, whether House districts or states. For members of Congress, “all politics is local,” as Speaker of the House Thomas P.

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