Federal Powers and Separation of Powers

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FEDERAL POWERS AND SEPARATION OF POWERS

Through the eighteenth century Great Britain sought to make its American colonies a key source of revenue by applying an economic concept known as mercantilism. The colonies were to send to Britain raw materials such as food, timber, and furs at low prices while importing British finished products at high prices. To make mercantilism most effective for Britain the colonies were also prohibited from trading with other countries. In reaction to Britain's heavy hand, the colonists refused to fully cooperate. Often, in defiance, taxes were not paid and trade with other countries occurred.

At the conclusion of the French and Indian War in 1763, England had doubled its North American territory but also found itself with a huge war debt. The British government believed the colonies should help pay this debt and enacted a series of strict financial control measures. The most hated of these attempts to raise money for the British was the Stamp Act of 1765. The act required colonists to buy a revenue stamp each time they registered a legal document or bought such items as newspapers, almanacs, liquor licenses, or even playing cards. In 1767 Parliament passed the Townshend Acts which taxed paint, glass, lead, paper, and tea. Eventually, the tea tax lead to the "Boston Tea Party." To punish the colonists, the British passed more measures which the colonists labeled the Intolerable Acts of 1774. At this time tensions reached the breaking point.

In September of 1774, the colonists assembled the First Continental Congress which drafted a message to Britain claiming they would no longer tolerate being deprived of their life, liberty, and property. Open rebellion leading to the Revolutionary War (1775–1783) followed. During the war, the Second Continental Congress met in 1781 to create a new government. But fearful of strong central governments as Great Britain's, the colonial leaders created the Articles of Confederation which established a weak union of strong state governments. The new national government was given few powers. The national legislature consisted of only one house in which each state had one vote. No federal courts existed.

Following the end of the war in 1783, the new union experienced major difficulties. The weak central government had no tax powers to raise money, and each state coined its own money, regulated commerce (business and trade) as it saw fit, and had state courts hearing cases involving federal law. A Constitutional Convention was called in May of 1787 to revise the Articles of Confederation and solve the problems it created. Debate focused on the role and structure of the federal government. Federalists wanted a strong central government. Antifederalists, states' rights advocates, wanted most power to remain with the states. A compromise led to division of political power between federal and state governments. The leaders, rather than fixing the Articles of Confederation, drafted the U.S. Constitution. Those leaders, known as the Framers, created a stronger federal government consisting of three branches, the legislature, the executive, and the courts. This idea for a separation of governmental powers was largely credited to James Madison (1751–1836) who was influenced by the writings of eighteenth century French philosopher Baron Montesquieu (1689–1755). Montesquieu had contended that tyranny (political oppression) would usually result when a government, like Great Britain, had all of its power concentrated in one body.

The Framers of the U.S. Constitution sought "to form a more perfect union, establish justice, insure domestic tranquility [peace], provide for the common defense, promote the general welfare, and secure the blessings of liberty" for the nation's citizens. The Constitution consisted of several main sections, called Articles. The first three articles divides powers among the three branches. Article I defined the powers of the legislature, Congress, Article II the role of the executive branch, the president, and Article III the powers of the Supreme Court, the judicial branch. The legislative branch makes laws, the executive branch carries out the laws, and the judicial branch interprets the laws and decides legal disputes. The remaining articles described other aspects of government.

The Legislative Branch

The legislative branch was considered the heart of the new nation with major governing powers. Therefore, the structure of Congress drew considerable debate. One proposal, known as the Virginia plan, called for a legislature composed of two houses, called a bicameral legislature. Representatives in both houses would be elected by the states based on their individual populations. As a result, the states with more people would have greater representation. In response, another plan, the New Jersey Plan, proposed a one-house legislature, unicameral. All states would have equal representation. Therefore, less populated states would have an equal voice with the more populated states. After much debate, a compromise was reached known as the Connecticut Compromise. The Framers of the Constitution decided on a bicameral legislature consisting of a Senate with each state equally represented and a House of Representatives with membership based on the population size of each state. The House was originally the only part of federal government elected by the people, hence considered the most important in representing people's views.

In modern times, the Senate contains 100 members with two from each of the fifty states. Though originally elected by the state legislatures, Senators are now elected directly by the people for six-year terms. A third of the Senate comes up for reelection every two years. Regarding the House, in 1929 Congress set the total number of representatives at 435. The national census taken every ten years determines how many representatives each state can have and those representatives are elected every two years.

Remembering the oppressive British central government and determined to avoid a legislature which could abuse its power, the Framers were more detailed about Congress' powers than for the other two branches of government. Congress received powers to tax and spend, approve treaties, regulate interstate and foreign commerce, conduct foreign affairs, raise an army and navy, coin money, and declare war. The supremacy of the federal government over state governments was established in two clauses. The Necessary and Proper Clause in Article I gave Congress broad powers to pass any laws that it can reasonably justify to carry out its powers. The Supremacy Clause in Article VI simply states that such laws passed by Congress, in addition to the Constitution itself and treaties approved by Congress, are the supreme law of the land. Whenever a conflict between a federal law and a state law occurs, the federal law always takes priority. Exercising its duty to interpret the Constitution, the Supreme Court recognized in McCulloch v. Maryland (1819) that Congress has implied powers not specifically mentioned in the Constitution, powers that come to all independent sovereign governments.

Some restrictions on Congress were included, such as prohibition against passing laws singling out specific individuals for punishment in ex post facto (after the fact) laws. Though the main body of the Constitution contains some restrictions on congressional power, the Bill of Rights added as the first ten amendments to the Constitution offers far more restrictions. Adopted in 1791 to appease states' rights advocates who feared the new central government would have too much power, the Bill of Rights protects various individual rights from federal actions, including freedom of speech, religion, and the press, the right to assemble in groups, and protections from certain search and seizures. Also included was the Tenth Amendment which limited the power of the federal government. The amendment reads that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." However, the precise line between federal and state powers was not drawn leaving an ongoing debate between federalists and states' rights advocates.

A constant problem in separation of powers has been Congress' power "to declare War." Repeatedly through history, presidents have committed troops to armed conflict in foreign countries without first obtaining a declaration of war from Congress. President Abraham Lincoln did this when ordering blockades of Southern seaports in the Civil War (1861–1865), and the sending of troops a century later to the Vietnam war (1964–1975) was another example. Though presidents have been challenged in court on several occasions, the Supreme Court has largely stayed out of the issue leaving it to Congress to take whatever action it chooses which normally has been none.

Another issue involving separation of powers between the legislative and executive branches has been the frequent delegation of congressional powers to the president through laws passed. Usually this delegation happens when Congress passes laws to regulate some activity, such as creation of the Interstate Commerce Act of 1887 to regulate interstate commerce. The Court in J.W. Hampton v. United States (1928) gave support to such transfers of power as long as Congress establishes guidelines for the executive branch to follow in carrying out the duties.

The Executive Branch

Article II of the Constitution gives the President of the United States power to enforce the laws. The president must be a natural born citizen, at least thirty-five years of age, and have resided in the United States for at least fourteen years. The president serves a four-year term and is limited to two terms.

Perhaps fearing the concentration of power in a single person as with the late eighteenth century English monarchy of King George III, few powers are granted the executive. Roles and responsibilities are only very generally described. Nonetheless, through time the position has become recognized as the most powerful in the world and presidential powers have steadily grown largely unchecked. The courts have generally recognized broad presidential powers issuing few decisions restricting it. Though a civilian, the president as the commander-in-chief of the armed forces has ultimate control over the military. This power likely came from fear that the military might gain power over the civilian government. The president also has power to make treaties, with the advice and consent of the Senate, and to terminate treaties as recognized in Goldwater v. Carter (1979). The president holds broad foreign affairs powers as recognized by the Court in United States v. Curtiss-Wright Export Corp. (1936).

The president's key responsibility to "take care that the laws be faithfully executed" has been largely delegated to federal agencies of the executive branch, such as the departments of justice, interior, and agriculture. Heads of these various departments are members of the president's cabinet. The president may also propose legislation to Congress including the national budget.

Through executive powers that are largely concentrated in one person, the president can influence public opinion far more than the other two branches. The presidents through time have held widely varying ideas of how to use this power. Beginning with President Theodore Roosevelt (1901–1909), many presidents have expanded on how to use this unique power of persuasion and influence.

The Judicial Branch

Article III of the Constitution established only "one Supreme Court" but gave Congress power to create "such inferior [lower] courts as the Congress may from time to time ordain and establish." Congress exercised its authority to create a three level judicial system with the Supreme Court at the top, courts of appeal in the middle, and district courts at the bottom. The nation was divided into eleven judicial regions in which a court of appeals is in each. Federal district courts are located in each state.

The Constitution states that federal courts may only hear cases involving constitutional questions, federal law, treaties, maritime (activities on the oceans), when the United States is a party, and between two or more states, between a state and citizen of a different state, and between citizens of different states. Only cases involving ambassadors, other public ministers and consuls, and when a state is a party may come directly to the Supreme Court without first going through the lower courts. Federal courts may also issue writs of habeas corpus when questions about the legality of an individual's detention by authorities are raised and writs of mandamus which force government officials to carry out their public duties. The federal courts can issue arrest and search warrants and hear both criminal and civil cases.

The most important constitutional limitation on the federal court system is that only cases involving actual disputes can be heard. The courts cannot be asked to rule on the constitutionality of a law without an actual incident occurring. Still, the judiciary remains the last word on division of powers among the three branches.

Checks and Balances

To guard against one of the branches becoming too powerful or abusing its powers, the Framers constructed a complex series of checks and balances in which each branch watches over the other two. The Framers were more concerned about abuse of powers than government efficiency in making decisions. In reality, the three branches are more interrelated than they are actually separate. The president can veto laws passed by Congress or simply not carry out duties assigned to him by congressional acts. Congress can override a presidential veto with a vote by two-thirds of both houses. Congress can also determine the executive branch's budget and must confirm presidential appointees to various posts, including cabinet members and judges. Congress can also impeach the president, or other members of the executive branch. No one can be a member of the legislative and executive branches at the same time.

The president can keep check on the courts by appointing all federal judges including the Supreme Court justices. Because judges serve for life, presidents can exert an influence on U.S. policies well beyond their term of office. Life tenure also protects judges from the whims of public opinion. No Supreme Court justice has ever been removed from office by impeachment, but Congress has the power to do so. If Congress so desired, it could eliminate all federal courts except the Supreme Court. More realistically, Congress has the responsibility to confirm all judicial nominees.

In practicality, the Supreme Court is the least-checked branch of government. Because of their life time appointments, the judicial branch is least accountable to the public through the election process. The federal courts have power to declare unconstitutional acts of Congress or actions by the executive. As stated by Chief Justice John Marshall in the landmark Marbury v. Madison (1803) case establishing the concept of judicial review, "It is, emphatically, the province and duty of the judicial department to say what the law is." The judicial power has been well dramatized in numerous decisions, such as striking down the federal income tax in Pollack v. Farmers' Loan and Trust Co. (1895) and federal child labor laws in Hammer v. Dagenhart (1918). Having the power of judicial review as recognized in Marbury, the courts can review presidential actions and agency activities for their constitutionality and rule them void if found unconstitutional. Only four times in U.S. history have Supreme Court decisions been overridden by constitutional amendments which have been passed by Congress and ratified (adopted) by the states.

Although never mentioned in the Constitution, two established doctrines, executive immunity and executive privilege, shield the president to a certain degree from interference by the other branches. Executive immunity protects the president from judicial interference. A court cannot order the president to take, or to stop taking, action to carry out his executive duties. Executive immunity was recognized by the Court in Mississippi v. Johnson (1867) and later expanded in Nixon v. Fitzgerald (1982). Executive privilege refers to the president's ability to withhold information, documents or testimony of aides from congressional or judicial probes. The Supreme Court recognized the existence to at least a limited privilege in United States v. Nixon (1974).

In the slow-paced society in which the Framers lived in the late eighteenth century, concern over government abuse of power outweighed interest in government efficiency. The separation of powers was designed with that in mind. But, as the general pace of American life increased dramatically through the twentieth century, concerns over government efficiency grew. Yet, the idea of separation of powers has remained strong though their specific nature has changed with the Supreme Court having the final say in what it means at any particular time for any particular occasion.