Separation of Powers In American discourse separation of powers is more a name than a description. None of the three branches (legislative, executive, or judicial) of the national government are clearly separate from one another. Congress, for example, has an impeachment club to check the others; the president's veto power is plainly legislative in nature. No wonder James Madison in The Federalist, no. 47, undertook to answer the Anti‐Federalist charge that “The several departments of power are [not separated but] blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.” Madison's answer was that Montesquieu—the “oracle” of separation—did not mean that “departments ought to have no partial agency in, or control over, the acts of each other.” He meant rather that “the whole power of one department [should not be] exercised by the same hands which possess the whole power of another department.” The merit of “blending,” according to Madison, was that, along with bicameralism and federalism, it produced a safety net of “checks and balances.”

A crucial problem is that split power inevitably entails split accountability. No wonder then that so many difficulties in American government spring ultimately from its divided power system. In contrast, the parliamentary system seeks safety in clear, direct lines of electoral accountability—and less in a mechanistic clash of sundered agencies of government. Concentrating power for effective action in a prime minister, it makes that person directly amenable to parliament while the latter is directly amenable to the electorate. This scheme largely eliminates what for Americans is a persistent quandary: which of several shells hide the peas of power and responsibility? That quandary partially accounts for the sense of frustration that is so widespread in the American electorate.

Historical Background.

What was the evil that checks and balances were designed to cure? The founders presumably were haunted by monarchy and, in particular, George III. Perhaps, as some progressive historians insist, they feared the untutored masses. In this view the Constitution was foisted upon the country as an antidote against “the evils of democracy.” The prime purpose allegedly was to protect vested interests by such curbs upon the masses as checks and balances—especially judicial review—and a central government in which only the House of Representatives was to be popularly elected.

Madison suggested in The Federalist that what most moved the founders was neither monarchy nor the masses but human nature, as they understood it. In their view mankind is moved less by reason than by passion, less by benevolence than by self‐interest. As Alexander Hamilton put it: “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint” (Federalist, no. 15). Separated powers along with checks and balances are prominent among the several “interior” and “exterior” constraints described in The Federalist, nos. 10, 47, 51. It is crucial that these essays are concerned with checking both minority and majority “factions” that spring from self‐interest, whereas the progressives seem to have thought majorities could do no wrong.

But if majority as well as minority factions were to be constrained, how could government be expected to function efficiently? The answer must be that the founders favored inefficient government checked and balanced against itself because it seemed safer than the greater risk of tyranny in a more efficient system. The choice was relatively easy given the simple, static society of 1787 that required, by modern standards, very little government. Surely the founders might reasonably have supposed the modest needs of their day could be met by machinery that at best would work slowly and, perhaps, only when supported by a consensus of opinion so great as to neutralize the built‐in impediments. While the simple community the founders knew has long since passed away, their basic plan of government lives on.

Separation and the Party System.

The need for coordination of the separated branches helps to explain the extraconstitutional rise of our political party system that began in President George Washington's administration. Former members of the Constitutional Convention moved into all branches of the new government. Indeed, the convention's Federalist values prevailed throughout the Washington administration and in the Supreme Court as well. That is why, despite checks and balances, Hamilton was able to achieve speedily his famous, if controversial, legislative program. The key to his success was a kind of embryonic one‐party system that bridged and neutralized checks and balances. The lesson was not lost on Thomas Jefferson. Recognizing that opposition from within was futile, he resigned from Washington's cabinet to build and lead an opposing party. What he achieved was an informal constitutional amendment that made political parties a vital element of American government.

Strong parties promote strong government because they cultivate cooperation at the expense of friction among the separated organs. Thus in the long view the history of American government seems a history of spasms. In weak party eras when the founders' system prevails, Congress and the president are apt to be at odds. In strong‐party eras the built‐in friction is ameliorated. Then there are apt to be vigorous legislative programs in response to accumulated problems. President Woodrow Wilson's crucial reforms were the fruit of the high tide of the progressive movement, which for a brief time reinvigorated both major parties (see Progressivism). Later the Great Depression gave Franklin D. Roosevelt the leverage to build a potent new Democratic party; a massive New Deal program followed. By the 1950s that party had lost its zest as had the Republican party much earlier. Even the bright new Kennedy administration was frustrated in Congress. Then the shock of the assassination along with huge Democratic congressional majorities—thanks to Barry Goldwater's unsuccessful 1964 campaign—enabled President Lyndon B. Johnson to push a major reform program through Congress. Given the Vietnam War, the period of harmony and vigorous legislative reform was brief. Then separation of powers produced another period of stagnation.

Those who like clear, logical lines of power and responsibility find all this at best discouraging. Others, perhaps more sensitive to mankind's long, unhappy experience with government, find that among the world's few free nations the United States does not suffer by comparison; that history portends enough congressional‐presidential cooperation to meet pressing needs; that the gaps between these periods of creative harmony are in fact periods of gestation; that checks and balances have not prevented, but only delayed, innovation—thus promoting substantial consensus behind public policy. Of course, almost any determined and not insignificant minority generally can erect multiple constitutional or extraconstitutional barriers to frustrate virtually any proposal it finds seriously objectionable.

Judicial Independence in a Check and Balance System.

The Constitution contemplates both judicial independence and checks and balances. It follows that the judiciary, particularly the Supreme Court, is the most separated and least checked of all the branches of government. When, in Hammer v. Dagenhart (1918), for example, it held unconstitutional federal restraints on child labor no more was required than the concurrence of five of its own members. Nothing more was required when in Roe v. Wade (1973) it killed virtually all existing restraints on abortion. Yet to impose such edicts by legislation would require the approval of the Senate, the House of Representatives, and the president. A veto could be overriden only by a two‐thirds majority in both houses of Congress. Moreover, unlike the nine Supreme Court justices, the members of Congress and the president are accountable to the voters in an election, which for most of them would be less than two years away. If, notwithstanding all these checks and balances, the measures in question were adopted, they would face yet another hurdle, namely, judicial review.

Free of elections and fortified by tenure “during good behavior” with pay that may “not be diminished,” no Supreme Court justice has ever been removed from office by the impeachment process. Indeed, impeachment charges have been brought against a Supreme Court judge only once—almost two hundred years ago. That case against Justice Samuel Chase seems to have established the principle that impeachment lies only for criminal conduct, not as reprisal against judicial points of view.

Supreme Court decisions have been overridden by constitutional amendment in only four instances (see Reversals of Court Decisions by Amendment). The Eleventh, Fourteenth, Sixteenth, and Twenty‐sixth Amendments nullify, respectively, Chisholm v. Georgia (1793), Dred Scott v. Sandford (1857), Pollock v. Farmers' Loan & Trust Co. (1895), and Oregon v. Mitchell (1970). Numerous other proposed amendments aimed at court decisions relating, for example, to school busing, school prayers, equal rights for women, and abortion, have failed. In the end, of course, judges determine the meaning of amendments as they do with respect to other parts of the Constitution. This is to say the “checkee” determines the meaning and application—and thus the impact—of the check!

If these court‐control devices may properly be called checks and balances, they have been rarely used. Yet the judiciary does not live in a political vacuum. It may not follow the election returns, but it is not entirely unresponsive to the social forces that determine election results. The strength or weakness of the political party system in any given era seems to affect the functioning not only of the president and Congress but of the Supreme Court as well. In eras when a strong party coordinates the efforts of the two political branches there seems to be little room for judicial activism. Surely it is not by chance that each of our three outbursts of wholesale national policymaking by judges came when the party system was at peculiarly low ebb. Perhaps judges feel duty‐bound to intervene when other branches falter, or maybe only then are they willing to risk wholesale intrusion upon the political processes. Large‐scale court intrusion upon national policy did not begin until the Kansas‐Nebraska Act (1854) had wrecked both major political parties. The disrupting issue was whether slavery should be allowed in the new territories. Congress being deadlocked (read “checked and balanced”), the Supreme Court undertook in Dred Scott v. Sandford (1857) to settle the matter. The result was a moral and legal disaster.

With the lingering death of the old sectional party system the Supreme Court again became a major policy maker. In a matter of months it killed the federal income tax in Pollock v. Farmers' Loan & Trust Co. (1895), emasculated the Sherman Antitrust Act in United States v. E. C. Knight Co. (1895) and the Interstate Commerce Commission in ICC v. Alabama Midland Railway Co. (1897). So too it sanctioned the labor *injunction in In re Debs (1895) along with racial segregation in Plessy v. Ferguson (1896). Later it struck down two federal efforts to restrict child labor as well as a host of state regulatory measures symbolized by Lochner v. New York (1905). With a brief respite in the Progressive Era this economic activism continued until 1937, devastating virtually the whole early New Deal legislative program.

The aggressive role that judges had played in the era of moribund sectional politics could not be maintained in the face of a potent new urban party system led by Franklin Roosevelt. The “old” Supreme Court surrendered early in 1937. In short order the New Deal Court repudiated most of the activist innovations of the years from 1890 through 1936.

The decisions in Mapp v. Ohio (1961) and Baker v. Carr (1962) seem to mark the beginning of a new judicial era. By the late 1960s Americans seem to have lost their capacity for self‐government. Reasoned argument, compromise, and accommodation were increasingly replaced by polarization and violence in word and deed. There was no party coalition in command of a sufficiently stable majority to advance coherent policies. The decline of Franklin Roosevelt's dynamic urban party system seems to have invited another outburst of judicial activism—supposedly led by Chief Justice Earl Warren.

Judicial Enforcement of Separation.

By virtue of their power of judicial review, judges have the last word short of constitutional amendment on the allocation of authority among the three branches of the federal government. It is worth special notice that this includes power to set the bounds of their own authority—as well as their own immunity from outside checks and balances. This power, a part of the classic problem of judicial review, reinforces what was suggested above on other grounds; namely, that the judiciary is at best only marginally within the checks‐and‐balances system. Virtually immune itself, it has enormous checking power with respect to all other organs of American government. Its decisions define the nature of congressional‐presidential separation.

Scope of Presidential Authority.

The Supreme Court ruled in United States v. Curtiss‐Wright Export Corporation (1936) that the “investment of the Federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution [rather these powers] vested in the Federal government as a necessary concomitant of nationality” (p. 318). In a word, they are extraconstitutional in origin. Moreover, these “inherent” and “plenary” powers belong to “the President as the sole organ of the federal government in the field of international relations” (see Inherent Powers; Presidential Emergency Powers). On that basis the Supreme Court upheld a quasi‐legislative presidential decree that forbade the sale in this country of war materials to those engaged in armed conflict in the Chaco. The purpose was to promote peace between Bolivia and Paraguay. The Curtiss‐Wright decision has never been judicially qualified.

The Constitution authorizes the president to make treaties, subject to ratification by a two‐thirds vote of the Senate. May the chief executive by virtue of his inherent foreign affairs power bypass the senatorial concurrence requirement by means of executive agreement? In United States v. Belmont (1937), affirming the Litvinov Agreement, the Supreme Court responded affirmatively though the Court's opinion rests in part on the “express” power of the president to recognize foreign nations. In the Litvinov accord President Roosevelt recognized the Soviet Union and accepted in satisfaction of Soviet debts property located in the United States that the Soviet Union had confiscated from Russian citizens. Presidential policy prevailed without approval of the Senate, and despite the law of the state in which the confiscated property was located. Thus, like a treaty, the Litvinov Agreement became the “supreme law of the land” under Article VI of the Constitution. Decisions of this type, especially Missouri v. Holland (1920), led eventually to the proposed Bricker Amendment (1954). Failing by only one vote in the Senate, the Bricker Amendment would have provided: “An international agreement other than a treaty shall become effective as internal law in the United States only by an act of Congress.” While this proposed amendment was not adopted, the forces behind it seem to have softened the Court's language, though not its decisions. In Dames & Moore v. Regan (1981), the Court upheld President Jimmy Carter's executive agreement with Iran concerning the American hostages and private claims against Iranian assets in this country. Emphasizing the “narrowness” of its decision, confined to a claims settlement, the Court took care to observe this was not a situation “in which Congress has in some way resisted the exercise of Presidential authority” (p. 688).

Goldwater v. Carter (1979) raised the issue whether the president may terminate a treaty without the consent of Congress or the Senate. A court of appeals en banc decided in favor of President Carter, who, in conjunction with the recognition of China, had abrogated a treaty with Taiwan. The Supreme Court dismissed the case without decision on the merits. The net effect was a victory for presidential authority.

The Constitution authorizes Congress “to declare War,” and makes the president commander in chief of the armed forces (see War Powers). Moreover, the president plays, and was intended to play, a major role in the conduct of *foreign affairs. The classic and constant problem is to what extent, if any, may the presidential commander in chief properly use the military forces without a congressional declaration of war? This problem came before the Supreme Court when President Abraham Lincoln instituted a naval blockade of the southern ports—clearly an act of war though Congress had not declared war. In the Prize Cases (1863), the justices upheld the president's action in the face of objections by those whose ships had been seized for trying to run the blockade. Four justices dissented powerfully. The problem of warlike measures in undeclared “wars,” including the sending of draftees into combat, came before the judiciary repeatedly with respect to the Vietnam conflict. Ever since the Prize Cases the Supreme Court has left such issues to be resolved by Congress, the president, and the electorate. Obviously Congress acquiesced in the Vietnam and Civil wars in the sense that it provided the troops and money without which war would have been impossible. Moreover, Congress did not do with respect to either of these wars what it eventually did with respect to the “invasion” of Cambodia: cut off funding.

To avert an industrywide strike during the Korean conflict, President Harry S. Truman seized the privately owned steel mills. Congress had provided quite different ways for dealing with such crises. Government lawyers argued that the president had acted within his constitutional powers as chief executive and commander in chief. In Youngstown Sheet & Tube Co. v. Sawyer (1952), Justice Hugo Black wrote a brief “opinion of the Court.” The seizure, he said, could not be justified as an exercise of military power. Then, noting Congress's refusal to authorize what the president had done, the justice found it forbidden by separation of powers doctrine: “In the framework of our constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. … And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute” (p. 587). All of the other judges found the problem more complex than did Justice Black. Even the five concurring judges wrote separate opinions. The trouble was a premise that Justice Black ignored: both the Constitution and history reject strictly separated powers. While there are three quite distinct branches, each of them has some traces of legislative, executive, and judicial power. Moreover, what remains of the separation of powers has been qualified by history. The three dissenters noted an impressive array of presidential lawmaking. Without waiting for Congress, George Washington proclaimed neutrality; Thomas Jefferson bought Louisiana; James Monroe issued his famous doctrine; Andrew Jackson removed federal deposits from the Bank of the United States; Lincoln emancipated the Confederacy slaves. This pattern continued through Roosevelt's Bank Holiday proclamation and his numerous war‐effort edicts. The five justices who concurred in Black's judgment quite clearly could not accept the part of his opinion that would outlaw all presidential lawmaking and a large part of American history as well.

Congress vis‐à‐vis the Executive.

A corollary of the separation of powers doctrine holds that Congress may not delegate legislative power to the executive branch. Yet the Supreme Court in J. W. Hampton v. United States (1928) upheld an act of Congress giving the president authority to raise or lower tariffs within prescribed limits when he found such revision necessary to equalize the costs of production in the United States and other nations. This authorization was sustained on the ground that “If Congress shall lay down by legislative act an intelligible principle to which the [“delegee”] is directed to conform, such legislative action is not a forbidden delegation of legislative power” (p. 409).

Delegation of Power.

Congress has often made such grants of authority to various executive and administrative agencies. Usually these grants are extremely broad and the guidelines so vague as to be essentially meaningless. For example, the Interstate Commerce Commission is authorized to order “just and reasonable” railroad freight rates, and the Federal Communications Commission to license radio stations in accordance with “public convenience, interest or necessity.” Similarly Congress provided for the renegotiation of World War II procurement contracts and authorized the recovery from contractors of profits that administrative officials found “excessive.” Save two instances, Panama Refining Co. v. Ryan (1935) and Schechter Poultry Corp. v. United States (1935), no congressional delegation of lawmaking power has been held invalid no matter how vague the purported guidelines. The two exceptions perhaps are best explained as part of the old laissez‐faire judicial activism that virtually destroyed the early New Deal (see Laissez‐Faire Constitutionalism). In effect, it is now enough both in law and practice for Congress merely to identify problems and leave solutions to administrative specialists. It is worth noticing that in Mistretta v. United States (1989) the Supreme Court found no improper delegation and no separation of powers problems in an act of Congress that gave an independent agency within the judicial branch the power to promulgate mandatory sentencing guidelines for federal courts.

An open‐ended delegation may be an irresponsible passing of the buck. Sometimes, however, legislators resort to abstract public interest guides simply because they cannot foresee many of the mundane problems that necessarily attend implementation of their general policy objectives. Hence, the contemporary judicial approach is not to invalidate statutory delegations of power but to assure that they are accompanied by adequate controls. Many such controls are built into the administrative process itself; our concern here is presidential and congressional oversight. Until the Chadha case (1983; see below), Congress often retained a “legislative veto” with respect to the use by administrative agencies of delegated power.

Administrative Personnel.

At issue in Myers v. United States (1926) was an act of Congress providing that postmasters could be appointed and removed by the president with Senate consent (see Appointment and Removal Power). The Supreme Court held that the requirement of senatorial consent for removal was inconsistent with the constitutional grant of “the executive power” to the president and also with his duty to “take care that the laws be faithfully executed” (pp. 163–164). Without the power to control via unfettered removal authority the president would not be the chief executive.

The presidential victory in Myers was soon qualified. Humphrey's Executor v. United States (1935) arose under a statute providing that members of the Federal Trade Commission could be removed from their seven‐year terms of office only “for inefficiency, neglect of duty, or malfeasance in office.” President Roosevelt sought to remove Humphrey from office not on any of the statutory grounds but on the basis of Myers. A unanimous Court found the removal invalid. The Court distinguished between officials who perform purely executive functions as in Myers and those who perform quasi‐judicial functions as in Humphrey. This is a classic example of promoting freedom through governmental inefficiency that springs from checks and balances. Mr. Humphrey was a holdover from the Hoover administration, which the electorate had rejected in 1932 by electing Roosevelt. Yet the Humphrey case means that a new administration must live with a person in high office whose policy views are clearly at odds with those of the new regime. Securing the independence of the regulatory commissions, Humphrey provided the foundation for a “headless fourth branch of government.”

Just as the Supreme Court in Myers held Congress cannot limit the president's authority to remove from office those who perform “purely” executive functions, in Buckley v. Valeo (1976) the justices held Congress cannot appoint such officers. Nor, according to Bowsher v. Synar (1986), can Congress remove them.

Policy Differences.

Recognizing that it has been delegating away dangerously broad powers, Congress since 1932 had frequently reserved for one or both houses power to “veto” what are deemed improper or unwise exercises of delegated authority (see Legislative Veto). The Supreme Court in Immigration and Naturalization Service v. Chadha (1983) held invalid a one‐house veto of a deportation exemption granted (pursuant to delegated authority) by the INS. Such a veto, the Supreme Court said, was legislation that only Congress, subject to the president's veto, can enact. True to eighteenth‐century dogma, the Court declared the “fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of the government, standing alone, will not save it, if it is contrary to the Constitution” (p. 944). In U.S. Senate v. Federal Trade Commission (1983), the justices extended the Chadha principle to a veto that is effective upon approval by both houses of Congress. Of course, Congress may influence the independent regulatory commissions through its investigation and its budget powers, but this is quite different from day‐to‐day oversight.

The Ethics in Government Act of 1978 provided for the appointment of “independent counsel” to investigate and, when appropriate, prosecute certain high‐ranking officials for violations of federal criminal laws. The purpose of the measure was to bypass a regular function of the Department of Justice lest inter alia an administration find itself in the role of investigating and prosecuting itself. In Morrison v. Olson (1988), the Court held that Congress had not violated separation of powers principles because under the act the president can at any time remove from office an “independent counsel”—but only for “good cause.” In the Supreme Court's view the latter proviso did not substantially impede the president's law‐enforcing function. Unless the justices are prepared to undercut Myers, it seems likely they will not find much of an impediment in the “good cause” limitation.

Since Jefferson's day presidents have used military force from time to time without formal declarations of war. Jefferson fought pirates in Tripoli; Lincoln battled the Confederacy; Truman fought the North Koreans; Kennedy, Johnson, and Richard M. Nixon used the military in Vietnam. Widely felt dissatisfaction with the Vietnam venture led to congressional adoption—over President Nixon's veto—of the War Powers Act of 1973. Its purpose was to “insure that the collective judgment of both Congress and the President will apply to the introduction of United States armed forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” To achieve this objective the resolution requires consultation between Congress and the president before any military venture. It requires the president to report to Congress within forty‐eight hours any such action that he has undertaken and the reasons there for. It also compels him to end any military involvement after sixty (or ninety) days unless Congress approves or is unable to meet. Moreover the president must “remove” armed forces engaged in hostilities outside American territory and possessions if Congress so directs by a concurrent resolution that is not subject to a presidential veto.

At least three presidents since 1973 have insisted the resolution violates long‐settled traditions as well as presidential authority granted by the Constitution. Other commentators have been critical because in their view Congress has given its advance blessing to any sixty‐ or ninety‐day military venture by the president. Another difficulty with the War Powers Act is the subsequent Chadha restraint on legislative vetoes.

One cannot ascertain to what extent, if any, the War Powers Act has in fact restrained presidential action. Presidents Gerald Ford, Carter, and Ronald Reagan reported seventeen military ventures to Congress—sometimes not strictly within the forty‐eight hour deadline. Among those reported late was President Carter's effort to rescue the hostages in Iran and President Reagan's involvement in Grenada. Congress has never rebuked a president for violating the War Powers Act nor has the judiciary found that it raises any justiciable as distinct from political questions. However, differences between President Reagan and Congress with respect to what started as a peacekeeping mission in Lebanon led to a compromise whereby the marines would be withdrawn within eighteen months.

Summary and Conclusion.

America's peculiar institution of judicial review gives courts enormous supervisory power with respect to the other branches of government. It also permits courts to define whatever powers of self‐defense the other branches have against the judiciary. The upshot is that separation of powers means largely what the Supreme Court says it means.

As a matter of history the political branches have rarely tried to use their formal weapons (impeachment, constitutional amendment, and jurisdiction control) against the Supreme Court. Thus, political parties seem—when robust—the most effective, if indirect, check against otherwise independent judges.

Few Supreme Court decisions confine the presidency. Humphrey was a severe and perhaps debatable blow. The Steel Seizure Case recognizes significant presidential lawmaking power provided it does not collide with prior congressional measures. While United States v. Nixon (1974) was an unmitigated defeat for President Nixon, it was a victory for the presidency because the Court recognized a need for confidentiality in the conduct of presidential affairs. In many other cases, whether relating to foreign or domestic matters, the Supreme Court has either withheld its hand or supported the president in the face of separation of powers challenges. This judicial leniency along with the habitual willingness of Congress to delegate to the executive branch vast discretionary power helps to explain the rise since the Great Depression of what Arthur Schlesinger, Jr., calls the “imperial presidency.” Expansive delegation may be largely a symptom.

As though recognizing its own carelessness with respect to delegation, Congress has provided repeatedly for that after‐the‐fact remedy called the legislative veto. The Chadha ruling ended that approach, which may have been less important as a remedy than as a recognition by Congress that it had been giving away too much authority and had not been performing adequately. Such a confession seems implicit in the Gramm‐Rudman Act, in which Congress sought by a kind of automatic pilot device to make good its own lack of discipline with respect to the budget. The Chadha decision and Congress's farcical maneuvering to avoid Gramm‐Rudman strictures may yet bring real reform.

In his famous Myers dissent Justice Louis D. *Brandeis said: “The doctrine of 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 the governmental powers among three department, to save the people from autocracy” (p. 293). This is a classic expression of the eighteenth‐century hope that freedom could be secured by calculated inefficiency in government. A more modern hope is that freedom would be better served with more efficiency and more democratic accountability. We are still haunted by an ancient riddle: How far can we build up effective government before it topples over into despotism? How much inefficiency can we afford without slipping into disaster?

See also Delegation of Powers; Judicial Power and Jurisdiction; Judicial Review; Party System; Political Parties.

Bibliography

Benjamin Ginsberg and and Martin Shefter , Politics by Other Means (1990).
Louis Henkin , Foreign Affairs and the Constitution (1972).
Philip B. Kurland , Watergate and the Constitution (1978).
Theodore Lowi , The End of Liberalism (1980).
M. J. C. Vile , Constitutionalism and the Separation of Powers (1967).
Martin Wattenberg , The Decline of American Political Parties (1986).
Christopher Wolfe , The Rise of Modern Judicial Review (1986).
Gordon Wood , The Creation of the American Republic (1969).

Wallace Mendelson

SEPARATION OF POWERS

SEPARATION OF POWERS. Separation of powers is a doctrine that is often believed to rest at the foundation of the U.S. Constitution. It holds that liberty is best preserved if the three functions of government—legislation, law enforcement, and adjudication—are in different hands. The modern idea of separation of powers is to be found in one of the most important eighteenth-century works on political science, the Baron de Montesquieu's The Spirit of the Laws (1748), which states that "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates … [or] if the power of judging be not separated from the legislative and executive powers." In Federalist No. 47 (1788) James Madison, commenting on Montesquieu's views and seeking to reconcile them with the Constitution's provisions, states that "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed [sic], or elective, may justly be pronounced the very definition of tyranny."

In truth, however, the Constitution does not strictly adhere to the separation of powers, as the three branches of the government—Congress, the president, and the courts—have some overlap in their constitutionally assigned functions. Thus, although Congress is charged with legislation, a bill does not become law until the president affixes his signature, and the president may veto the legislation, which can be overridden only by a two-thirds vote of the House and Senate. Similarly, the courts came to be recognized to have the power of judicial review, pursuant to which they may declare laws or executive acts to exceed the authorization of the Constitution, and thus to be null and void. Congress is given the power to impeach and try executive and judicial branch officials for misconduct; if found guilty, they are removed from office. Presidential appointments to the judiciary or to the cabinet require the approval of a majority vote in the Senate; treaties negotiated by the president require a two-thirds Senate majority. These and other provisions are the famed "checks and balances" within the Constitution, which are believed to prevent the exercise of arbitrary power by each of the branches.

Separation of Powers: Eighteenth-and Nineteenth-Century Issues

Nevertheless, whether or not the branches occasionally are involved in each other's assigned tasks, Montesquieu's idea that separation of powers should still be preserved whenever possible has been an important one throughout American history. In Hayden's Case (1792), for example, one of the earliest matters to be brought before the federal courts, the judges refused to perform the task a federal statute assigned them of reviewing applicants for Revolutionary War pensions. The reason was that their review was subject to overturning by the secretary of war, an executive branch official. The judges stated that to participate would be to compromise the independence of the judiciary. Similarly, in the early years of the Washington administration, the U.S. Supreme Court declined to announce advisory opinions because it felt its task should be limited to adjudication of actual cases.

Until about 1798 the federal courts decided cases based on the assumed existence of a federal common law of crimes, meaning that acts considered criminal in England would be considered so in the United States although no statute had been passed to prohibit them. Critics of this procedure argued that the American scheme of government required that the legislature first define a crime and affix a punishment before the courts could act. This matter became an important political issue in the period leading up to the presidential election of 1800, and the Supreme Court rejected the practice in U.S. v. Hudson and Goodwin (1812).

Separation of powers resurfaced from time to time in the nineteenth century as a cause of concern. It arose, for example, in the impeachment of President Andrew Johnson. Congress had passed, over the president's veto, the Tenure of Office Act (1867), which prevented him from replacing cabinet officials before the Senate had con-firmed their successors. Congress's aim was to ensure that Johnson was not able to replace officials whom Congress believed to be more committed to congressional policies than was the president himself. President Johnson fired his secretary of war in defiance of the statute, and was impeached by the House and brought for trial before the Senate. His defense was that the independence of the executive required that he have the power to fire as well as nominate executive branch officials, and his narrow acquittal on the impeachment charges at his Senate trial was generally seen as a vindication of the separation of powers principle.

Separation of Powers in the Twentieth Century

In the twentieth century, similar sporadic attention was paid to separation of powers. For example, when President Franklin D. Roosevelt sought legislative authorization for increasing the number of justices on the Supreme Court, he was accused of attempting to "pack the Court" in order to cobble together a majority of justices to end the Court's consistent pattern of rejecting key New Deal measures. The court-packing measure was never passed. One reason was the blistering criticism of the president for seeking to compromise the independence of the judiciary. Another was that the Supreme Court, probably taking the hint, reversed course on several key issues of constitutional interpretation. The principle of separation of powers was preserved in that the president's bill failed, although it was clear that the president had managed to change the course of Supreme Court adjudication. The Court itself sought to rein in executive authority on separation of powers grounds when in Youngstown Sheet and Tube Co. v. Sawyer (1952) it invalidated President Harry Truman's attempt to seize and operate the nation's steel mills without statutory authority.

In reaction to the growing military power wielded by the president in the late twentieth century and the tendency of the executive to involve the country's armed forces in foreign adventures, Congress passed the War Powers Act of 1973 as a means of subordinating the president to the constitutionally granted power of the Congress to declare war. Congress's concern with the exercise of executive power was also reflected in the passage, following the Watergate scandal, of the Independent Counsel Act of 1978, which created the Office of Independent Counsel to investigate executive misconduct and report on possible impeachable offenses to the Congress. Shortly after its passage, the law was challenged before the Supreme Court as a violation of separation of powers, on the grounds that the prosecutorial authority it created was, by definition, independent of the executive branch (to which branch the Constitution assigns the prosecutorial task) and that it involved members of the judiciary in the selection of the independent counsels. The act was upheld by a 7 to 1 vote of the Supreme Court in Morrison v. Olson (1988). Justice Antonin Scalia's lone dissent in that case (on separation of powers grounds) was belatedly recognized as prescient, following the operation of a brace of independent counsels appointed during the Clinton administration and the expenditure of many millions of dollars in investigations perceived as yielding few valuable results. When the Independent Counsel Act came up for renewal in 1999, and when even one of the most prominent independent counsels, Kenneth Starr, appeared before Congress to testify against it on separation of powers grounds, it was allowed to expire.

A final matter involving the separation of powers, and an important political issue in the late twentieth and early twenty-first century, was whether state and federal judges had, for most of preceding seven decades, been making rather than simply interpreting the law. Republican presidential candidates tended to run on platforms that were critical of the expansionist interpretations of the Warren and Burger courts and that obliged the nominees to rein in "judicial activism." When George W. Bush became president in 2001, his commitment to appoint judges in the mold of the Supreme Court's most conservative members, Justices Scalia and Clarence Thomas—justices publicly committed to altering much of the jurisprudence of the late twentieth century—raised separation of powers difficulties. The question of "judicial ideology" became the subject of congressional hearings, and none of the new president's nominees for the federal judiciary were con-firmed for his first nine months in office. Republicans tended to argue—invoking separation of powers rhetoric in support of the president's position—that the Senate was now seeking wrongly to dictate what the judiciary should do in particular substantive areas of the law. Key Senate Democrats responded that they were simply seeking to fulfill their constitutional obligations to review judicial nominees in light of their fitness for office. Two centuries after the writing of the Constitution, then, the tension between the principle of separation of powers and its imperfect implementation in that document, a tension with which Madison sought to grapple in Federalist No. 47, had yet to be resolved.

BIBLIOGRAPHY

Fisher, Louis. Constitutional Conflicts between Congress and the President. Princeton, N.J.: Princeton University Press, 1985.

Kutler, Stanley I. The Wars of Watergate: The Last Crisis of Richard Nixon. New York: Knopf, 1990.

Marcus, Maeva. Truman and the Steel Seizure Case: The Limits of Presidential Power. New York: Columbia University Press, 1977.

Presser, Stephen B. The Original Misunderstanding: The English, the Americans, and the Dialectic of Federalist Jurisprudence. Durham, N.C.: Carolina Academic Press, 1991.

Vile, M. J. C. Constitutionalism and the Separation of Powers. Oxford: Clarendon Press, 1967.

Whittington, Keith E. Constitutional Construction: Divided Powers and Constitutional Meaning. Cambridge, Mass.: Harvard University Press, 1999.

Wolfe, Christopher. The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law. Rev. ed. Lanham, Md.: Rowman and Littlefield, 1994.

Wood, Gordon S. The Creation of the American Republic, 1776– 1787. Chapel Hill: University of North Carolina Press, 1969.

Stephen B.Presser

See alsoConstitution of the United States ; Impeachment Trial of Andrew Johnson .

Separation of Powers

BIBLIOGRAPHY

The separation of powers is normally understood as a constitutional doctrine according to which political freedom is best guaranteed by separating the powers of government into legislative, executive, and judicial branches, each with its own jurisdiction. The purpose of this arrangement is to ensure that no single group or individual can control all the levers of power and, thereby, rule despotically. The legislature has primary responsibility for lawmaking, while the impartial interpretation of the law and the application of it to particular cases falls under the purview of the judiciary. The executive must obey the rules established by the legislature and enforced by the judiciary.

Charles-Louis de Secondat, baron de Montesquieu (1689–1755), provided the separation of powers with its canonical statement in The Spirit of the Laws (1752), but early intimations of the idea can be found in ancient Greece and Rome, where the systematic study of constitutions first began. Aristotle was the first comparative political thinker to notice that all constitutions have deliberative, judicial, and executive elements. Although he did not argue that government should be organized into separate branches, he believed that different types of constitutions (democratic, aristocratic, or monarchic) should be “mixed,” so as to counteract the tendencies to corruption inherent in all pure constitutions. Greek historian Polybius (c. 200–c. 118 BCE) used this theory to explain Roman history, as did Renaissance Florentine thinker Niccolò Machiavelli. The immediate precursor to the development of the separation of powers, however, was seventeenth-century English political thought, particularly the work of John Locke.

The separation of powers is an inherently conservative doctrine, in that it was intended to prevent the use of state power to promote radical social change, and yet it contributed to the rise of constitutional democracy. It offered a constitutional design that promised simultaneously to check monarchical abuses of power and limit the growing ambitions of legislators. It appealed to the nobility, who felt squeezed between overweening absolutist monarchs and pressures to expand popular participation. Although the separation of powers is not a theory of democratic government—it can be, and was, adopted by constitutional monarchies—it gave impetus to the spread of democracy by offering a way of reconciling the will of the people with the rule of law. As such, the doctrine was celebrated in the Declaration of the Rights of Man and the Citizen (1789) during the French Revolution, and it was the subject of intense debate by the framers of the Constitution of the United States.

Over the course of the nineteenth century the doctrine lost relevance, and its meaning was gradually restricted to a more specific distinction among types of democratic constitutions—specifically, presidential versus parliamentary government. Critics of Montesquieu charged that he had misread the English constitution, by failing to appreciate how in Westminster parliamentary systems the legislature and executive were fused in the cabinet and in the office of the prime minister. Such a fusion of powers made parliamentary systems elective dictatorships, or so claimed the critics. The Constitution of the United States, with its separate election of president and congress, came to be seen as the closest approximation of the separation of powers.

Montesquieu’s critics misunderstood the separation of powers, however. They imagined a watertight separation of branches of government in which no person or group could be a member of more than one branch at a time and no branch could encroach upon the powers of another. This view, which is more of a caricature than a description of any observed political system, had no expositors: No major constitutional theorist ever called for such an absolute separation. James Madison (1751–1836) was the first to reject this caricature, not only because it misrepresented Montesquieu, but, more importantly, because the partial encroachment of branches of government was necessary as a check against the abuse of power: Ambition should counteract ambition; checks and balances, rather than watertight separation of branches of government, would limit tendencies toward abuse of power. Madison was firmly of the same mind as Montesquieu in his conviction that only power can check power.

In the twentieth century the idea of the separation of powers continued to occupy a respected place in legal scholarship and jurisprudence, but lost appeal among social and political theorists. The development of the administrative functions of the state, especially with the expansion of the welfare state, placed more public-sector activity outside the sphere of legislation and into the hands of specialized agencies and experts. The rise of totalitarianism by electoral means in Italy and Germany suggested that the separation of powers was a feeble bulwark against modern antidemocratic and illiberal movements. Political freedom depended more on the degree of social and economic equality, the competitiveness of political-party systems, and a culture of constitutionalism, than on the constitutional separation of powers. Above all, as political science became a more scientific discipline, the language of the separation of powers seemed outdated and formalistic. A new view of institutions arose, building on economic and organizational theory, in which the separation of powers was understood to mean the separate election of executive and legislature in a presidential system of government.

The Anglo-American tendency to treat the separation of powers as a virtual synonym of presidentialism has been resisted by continental political theorists, especially in recent work on deliberative democracy. German philosopher Jürgen Habermas argued that the various branches of government in constitutional democracies correspond to different logics of argumentation, and their separation is necessitated by these discourses. The legislature is the chief deliberative body, yet it has little administrative power. The weakness of the legislature as an administrative body ensures that its deliberations are insulated from the temptations inherent in the exercise of such power and hence oriented toward the production of general laws for the public good.

The purpose of the separation of powers, according to Habermas, is to bind the exercise of administrative power to the deliberative power of citizens acting in concert. The executive administers policies consistent with parliamentary law; it represents the need for action within the rule of law. Equally important is the separation of power between legislature and judiciary. The role of the judiciary is to impartially enforce the law, and court procedures reflect this imperative. The fact that judges can deny citizens their most basic liberties requires that the rules and procedures for doing so be established not by the judges themselves but by the legislature as a body that represents the collective, deliberative power of the whole community. Critics of deliberative democracy object to its highly abstract and normative tone, while exponents see it as a promising beginning for a renewed discussion of the separation of powers.

SEE ALSO Constitutions; Checks and Balances; Democracy; Government; Habermas, Jürgen; Judicial Review; Judiciary; Locke, John; Parliaments and Parliamentary Systems; Totalitarianism

BIBLIOGRAPHY

Habermas, Jürgen. 1996. Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechsstaats [Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy]. Trans. William Rehg. Cambridge, MA: MIT Press.

Hamilton, Alexander, James Madison, and John Jay. [1787–1788] 1982. The Federalist Papers. New York: Bantam Books.

Montesquieu, Charles-Louis de Secondat, baron de. [1752] 1949. De l’esprit des lois [The Spirit of the Laws]. Trans. Thomas Nugent, with introduction by Franz Neumann. New York: Hafner Publishing.

Vile, M. J. C. 1998. Constitutionalism and the Separation of Powers. 2nd ed. Indianapolis, IN: Liberty Fund.

Maxwell A. Cameron

Checks and Balances

BIBLIOGRAPHY

Although scholars dispute the precise origin of the phrase checks and balances, the basic idea of limiting political power through various institutional means is both ancient and modern. In the ancient worlds of the Greek city-state and the Roman Republic, a mixed constitution of the one, the few, and the many provided checks on governmental power, whether in the form of a monarchy (the rule of one), an aristocracy (the rule of the few), or a democracy (the rule of the many). This scheme of balancing and checking power, particularly as expressed in the works of Aristotle, Polybius, and Cicero, was a powerful influence in early modern Europe during the period of the Renaissance as expressed in the works of Niccolo Machiavelli, James Harrington, and Algernon Sydney. This ancient and Renaissance concept of a mixed constitution may also be found in the eighteenth-century works of Charles de Montesquieu, Francis Hutcheson, and William Blackstone. All of these works influenced the founders of the United States, notably John Adams, James Madison, and Thomas Jefferson. The classic literary study of the political dynamics in this scheme is William Shakespeare’s play Julius Caesar.

The modern concept of checks and balances derives primarily from a mechanical view of the universe made popular in the seventeenth and eighteenth centuries by Galileo Galilei and Isaac Newton, among others. For Alexander Hamilton, in Federalist No. 9, a concept of “legislative balances and checks” was among the modern improvements in the science of politics. According to the modern view—as reflected in the United States Constitution—the legislative, executive, and judicial functions of government must check and balance each other in order to prevent any one branch of government from dominating the others. In the American scheme, for example, presidents may veto acts of Congress, but Congress has the power to override presidential vetoes by a two-thirds majority vote of both houses. Similarly, as established in the U.S. Supreme Court case of Marbury v. Madison (1803), federal judges may rule acts of Congress unconstitutional as occurred in the cases of City of Boerne v. Flores (1997) and Clinton v. City of New York (1998).

Checks and balances also refers often to issues of federalism, or the relationship between the national and state (or regional) governments. In the United States, for example, the Tenth Amendment to the United States Constitution grants “reserved” powers to the states. This has meant, according to the courts, the power of state governments in the United States to regulate health, safety, and morals. But the Fourteenth Amendment, ratified in 1868, checks this power by asserting that no state may deny any person “life, liberty, or property, without due process of law,” nor may a state deny “equal protection of the laws.” In a number of recent cases, the U.S. Supreme Court has interpreted these constitutional provisions so as to limit state prerogatives in such areas as capital punishment, affirmative action, privacy rights, and voting rights. For some, checks and balances also refers to modifications in American political practice outside of formal constitutional change or judicial interpretation. Among these modifications are the rise of national political parties, the expansion of presidential power, the creation by Congress of independent regulatory agencies (such as the Environmental Protection Agency), and changing technologies, particularly as these technologies make possible the more rapid exchange of information, such as through widespread access to the World Wide Web.

SEE ALSO Aristocracy; Constitution, U.S.; Democracy; Machiavelli, Niccolò; Monarchy; Separation of Powers

BIBLIOGRAPHY

Montesquieu, Charles de. 1989. Montesquieu: The Spirit of the Laws. Trans. and ed. Anne M. Cohler, Basia C. Miller, and Harold S. Stone. Cambridge, U.K.: Cambridge University Press. (Orig. pub. 1748).

Pocock, J. G. A. 1975. Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition. Princeton, NJ: Princeton University Press.

Timothy Hoye

CHECKS AND BALANCES

CHECKS AND BALANCES. The term "checks and balances" is often invoked when describing the virtues of the Constitution of the United States. It is an Enlightenment-era term, conceptually an outgrowth of the political theory of John Locke and other seventeenth-century political theorists and coined by philosophes sometime in the eighteenth century. By the time the U.S. Constitutional Convention met in 1787, it was a term and a concept known to the founders. To them it meant diffusing power in ways that would prevent any interest group, class, or region, singly or in combination, to subvert the republic of the United States.

James Madison described a republic as "a government which derives all its power … from the great power of the people." Checks and balances were indispensable, he said, because it was vital to keep access to the full authority of the government "from an inconsiderable proportion [of the people], or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might claim for their government the honorable title of republic" without its substance. Thus, he cautioned, it was necessary to check vice with vice, interest with interest, power with power, to arrive at a balanced or "mixed" government.

The balanced government derived from the brilliant compromises the founders drafted. First and foremost, a tyrannical federal government would be checked by limiting its sovereignty, granting sovereignty as well to the individual states. A host of crucial compromises followed this key one: federal power balanced among legislative, executive, and judicial branches; federal executive authority, in the form of a president elected every four years and accorded a veto, but with legislative ability to override; direct election of a president, but filtered through an electoral college of state representatives; legislative power checked in class and democratic terms by an elite upper house (Senate) pitted against a popularly elected House of Representatives; and a distant but powerful national judiciary headed by the Supreme Court, always appointed to life terms and understood from its inception to possess the power of judicial review over both executive and legislative actions.

Together this combination of checks and balances was meant to sustain the republic at all times, even in periods of great national stress. No political group, economic or social class, or region possessed the access to power capable of dominating all others in this most successful of "mixed" governments—which is not to say that all of the compromises made by the founders were just in themselves, as in the case of explicitly recognizing the constitutionality of slavery in an effort to placate some mostly southern delegates.

The secret of the system of checks and balances lay in its inherent flexibility of interpretation over the generations and the ability of the Constitution to mold itself to the times even as it retained its inherent invincibility as the law of the land. By the late twentieth century some Americans feared that this flexibility was a grave weakness, encouraging permissiveness in the national courts and a penchant for aggrandized reform in both the executive and legislative branches. These critics, adhering to a doctrine of strict interpretation and a significant lessening of constitutional flexibility, have sought as a re-course to pin down the founders' "original intent" in order to render the U.S. Constitution less open to interpretation or adaptation over time.

BIBLIOGRAPHY

Brant, Irving. James Madison. 6 vols. Volume 3: Father of the Constitution, 1787–1800. Indianapolis, Ind.: Bobbs-Merrill, 1950.

Fairfield, Roy, ed. The Federalist Papers. New York: 1981.

Jensen, Merrill, and Robert A. Becker, eds. The Documentary History of the First Federal Elections, 1788–1790. 4 vols. Madison: University of Wisconsin Press, 1976–1989.

Carl E.Prince

See alsoConstitution of the United States ; Federalist Papers ; Judicial Review .

SEPARATION OF POWERS

The division of state and federal government into three independent branches.

The first three articles of the U.S. Constitution call for the powers of the federal government to be divided among three separate branches: the legislative, the executive, and the judiciary branch. Under the separation of powers, each branch is independent, has a separate function, and may not usurp the functions of another branch. However, the branches are interrelated. They cooperate with one another and also prevent one another from attempting to assume too much power. This relationship is described as one of checks and balances, where the functions of one branch serve to contain and modify the power of another. Through this elaborate system of safeguards, the Framers of the Constitution sought to protect the nation against tyranny.

Under the separation of powers, each branch of government has a specific function. The legislative branch—the Congress—makes the laws. The executive branch—the president—implements the laws. The judiciary—the court system—interprets the laws and decides legal controversies. The system of federal taxation provides a good example of each branch at work. Congress passes legislation regarding taxes. The president is responsible for appointing a director of the internal revenue service to carry out the law through the collection of taxes. The courts rule on cases concerning the application of the tax laws.

Under the system of checks and balances, each branch acts as a restraint on the powers of the other two. The president can either sign the legislation of Congress, making it law, or veto it. The Congress, through the Senate, has the power of advise and consent on presidential appointments and can therefore reject an appointee. The courts, given the sole power to interpret the Constitution and the laws, can uphold or overturn acts of the legislature or rule on actions by the president. Most judges are appointed, and therefore Congress and the president can affect the judiciary. Thus at no time does all authority rest with a single branch of government. Instead, power is measured, apportioned, and restrained among the three government branches. The states also follow the three-part model of government, through state governors, state legislatures, and the state court systems.

Our system of government in the United States is largely credited to james madison and is sometimes called the Madisonian model. Madison set forth his belief in the need for balanced government power in The Federalist, No. 51. However, the concept of separation of powers did not originate with Madison. It is often attributed to the French philosopher baron montesquieu, who described it in 1748. At the Constitutional Convention of 1787, Madison played a leading role in persuading the majority of the Framers to incorporate the concept into the Constitution.

cross-references

Congress of the United States; Constitution of the United States; Judicial Review; President of the United States; Presidential Powers; Supreme Court of the United States.

separation of powers A classic doctrine of liberal government, usually associated with the French philosopher Montesquieu (1689–1755), although the tripartite division was earlier suggested by Aristotle and Locke. In The Spirit of the Laws (1748), Montesquieu set out that the three branches of government- the legislature, the executive, and the judiciary – should be constitutionally separate from each other, both in function and in persons. The doctrine is enshrined in the US Constitution, which provides a formal separation of Congress, President, and Supreme Court. The separation, however, is not total and some collaboration, especially between President and Congress, is necessary if the system is to work. In the UK, the executive, formed from the majority in Parliament, dominates the legislature. The judiciary, however, is largely independent of legislative and executive processes, although the head of the judiciary, the Lord Chancellor, is a member of the CABINET (executive) as well as the presiding officer of the HOUSE OF LORDS (legislature).

checks and balances counterbalancing influences by which an organization or system is regulated, typically those ensuring that power in political institutions is not concentrated in the hands of particular individuals or groups. The term is first recorded in the writings of the American statesman John Adams (1735–1826).

separation of powers Principle in the USA that aims to prevent despotic rule by a system of checks and balances between the different branches of government. It was a guiding principle of the founders of the US Constitution. The three branches of government (executive, legislative and judicial) act as checks on each other.

separation of powers see Constitution of the United States .

Checks and Balances See Separation of Powers.