separation of powers in usa essay

Separation of Powers

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The term “ Separation of Powers ” was coined by the 18th century philosopher Montesquieu. Separation of powers is a model that divides the government into separate branches, each of which has separate and independent powers. By having multiple branches of government , this system helps to ensure that no one branch is more powerful than another. Typically, this system divides the government into three branches: the Legislative Branch, the Executive Branch, and the Judicial Branch. The United States federal government and forty states divide their governments into these three branches.

In the federal government, Article 1 of the United States Constitution establishes the Legislative Branch, which consists of Congress. Congress, in addition to other enumerated responsibilities, is responsible for creating laws. As a general rule, the nondelegation doctrine prohibits the Legislative Branch from delegating its lawmaking responsibilities. Congress can, however, provide agencies with regulatory guidelines if it provides them with an “intelligible principle” to base their regulations on. For more information on the Legislative Branch, refer to “Congress.”

Article 2 of the United States Constitution establishes the Executive Branch, which consists of the President. The President approves and carries out the laws created by the Legislative Branch. For more information on the Executive Branch, refer to “Executive Branch.”

Article 3 of the United States Constitution establishes the Judicial Branch, which consists of the United States Supreme Court. The Judicial Branch interprets the laws passed by the Legislative Branch. For more information on the Judicial Branch, refer to “Judiciary.”

Separation of Powers in the United States is associated with the Checks and Balances system. The Checks and Balances system provides each branch of government with individual powers to check the other branches and prevent any one branch from becoming too powerful. For example, Congress has the power to create laws, the President has the power to veto them, and the Supreme Court may declare laws unconstitutional. Congress consists of two houses: the Senate and the House of Representatives, and can override a Presidential veto with a 2/3 vote in both houses.

The Checks and Balances System also provides the branches with some power to appoint or remove members from the other branches. Congress can impeach and convict the president for high crimes, like treason or bribery. The House of Representatives has the power to bring impeachment charges against the President; the Senate has the power to convict and remove the President from office. In addition, Supreme Court candidates are appointed by the President and are confirmed by the Senate . Judges can be removed from office by impeachment in the House of Representatives and conviction in the Senate. In this way, the system provides a measure, in addition to invalidating laws, for each branch to check the others.

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Constitutional Issues - Separation of Powers

It is safe to say that a respect for the principle of separation of powers is deeply ingrained in every American. The nation subscribes to the original premise of the framers of the Constitution that the way to safeguard against tyranny is to separate the powers of government among three branches so that each branch checks the other two. Even when this system thwarts the public will and paralyzes the processes of government, Americans have rallied to its defense.

At no time in this century was the devotion to that principle more vigorously evoked than in 1937, when Franklin Roosevelt introduced a plan to increase the number of Justices on the Supreme Court. The conflict set off by the President's plan is more understandable when viewed in the historical context of expanding judicial power as well as in the contemporary context of pro- and anti-New Deal politics.

In the early national period, the judiciary was the weakest of the three branches of government. When Chief Justice John Marshall established the principle of judicial review in Marbury Madison by declaring an act of Congress unconstitutional, he greatly strengthened the judiciary. Even though the high court exercised this prerogative only one other time prior to the Civil War ( Dred Scott v. Sanford ), the establishment of judicial review made the judiciary more of an equal player with the executive and legislative branches.

After the Civil War, the Court entered a phase of judicial activism based on a conservative political outlook that further enhanced its own power. In accepting the view that the 14th amendment should be interpreted to protect corporations, the Court struck down laws that protected workers, such as minimum wage laws and laws prohibiting child labor. Critics of the Court's stand, including Justice Oliver Wendell Holmes, argued that these decisions were not based on the Constitution but upon the laissez-faire theory of economics. By 1937 the Court was widely regarded by the public as an enemy of working people.

This sentiment was exacerbated by the Great Depression. In 1935-36, the Court struck down eight of FDR's New Deal programs, including the National Recovery Act (NRA) and the Agricultural Adjustment Act (AAA). Public antijudicial sentiment intensified; many critics questioned the constitutionality of the concept of judicial review itself. As a result of this reaction, several constitutional amendments were introduced into Congress in 1936, including one that would require a two-thirds vote of the Court whenever an act of Congress was declared unconstitutional; another that would permit Congress to revalidate federal laws previously declared unconstitutional by repassing them with a two-thirds vote of both houses, and even one that would abolish altogether the Court's power to declare federal laws unconstitutional.

FDR remained silent, hoping that the antijudicial public sentiment would continue to grow without his having to enter the fray. He avoided any direct references to the Court in the 1936 election campaign. After his election victory, however, he submitted to Congress early in February 1937 a plan for "judicial reform," which forever came to be known as his attempt to "pack" the Supreme Court. Given Roosevelt's record for legislative success, it is interesting to discover why this plan to reconstitute the Court with Justices more favorable to the New Deal backfired.

Franklin Roosevelt and his Attorney General, Homer Cummings, had considered several options. They could have attacked the issue of judicial review head on, as Congress's proposed amendments had sought to do, but they chose not to, perhaps anticipating the public's attachment to the idea of the judiciary as the guardian of the Constitution. Instead, they chose to change the number of Justices on the Court, which had been done six times since 1789. Their plan had a different twist, however, for it proposed adding a justice for every justice over the age of 70 who refused to retire, up to a maximum of 15 total.

This proposal was all the more appealing because Justice Department lawyers had discovered that the very same idea had been proposed by Justice James C. McReynolds, one of the most conservative justices then sitting on the Court, when he had been Wilson's Attorney General in 1913. The administration could not resist the appeal of such irony, and without consulting Congress, the President and his New Deal aides blundered into one of the biggest political miscalculations of their tenure. By masking their true intentions, they created a split within their own party from which they never fully recovered.

It was expected that the Republicans would cry foul, but when the chairman of the House Judiciary Committee, Democrat Hatton Sumners of Texas, announced his opposition, the plan was as good as dead. Further resistance to the plan developed in Congress as the Court began a reversal of its previous conservative course by ruling in favor of such legislation as then National Labor Relations Act and the Social Security Act. Congressmen urged the White House to withdraw the bill, but confident of victory, FDR refused to back down. The cost was the alienation of conservative Democrats and the loss of the fight in Congress.

Letters poured into the White House and the Justice Department both attacking and supporting the President's plan. Many of the letters of support came from ordinary citizens who had worked in industries hurt by the Great Depression. The Worker's Alliance of Kalispell, MT, wrote, "We consider that Recovery has been delayed materially by the dilatory action of the Supreme Court. . . . An immediate curb on the Supreme Court is of utmost importance, then an amendment to put it in its proper place would be well and good." But others, most notably the legal establishment and the press, thought that the Supreme Court was already "in its proper place."

One of the most outspoken members of the press was the Rochester, NY, newspaper publisher, Frank Gannett. Our study document (99K JPEG) is a letter sent by Gannett to the Office of the Solicitor in the Justice Department and then referred to the Attorney General. Like many others in the file, it expresses the concern that the real issue is not judicial reform but the continued expansion of executive power. {A text version of study document is available.}

Even those who trusted Roosevelt, and who believed in what the New Deal was trying to accomplish, were wary. The following excerpt from a telegram to President Roosevelt is typical.

Please watch your step while attempting to curb the powers of the honorable Supreme Court of the United States. Such action may be in order while so able a person as your excellency may remain in the president's chair but please let us look to the future when it might be in order for the citizenship of our great country to look to the Supreme Court for guidance which we might justly require.

This month's document and the others quoted here can be found in the records of the Justice Department, Record Group 60: Correspondence of the Attorney General, case file 235868.

The Document

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National Archives and Records Administration Records of the Justice Department Record Group 60

Article Citation

Gray, Leslie and Wynell Burroughs. "Constitutional Issues: Seperation of Powers." Social Education 51, 1 (January 1987): 28-30.

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Instead of placing authority in the hands of one person, like a king, or even a small group of people, the U.S. Constitution divides power. Power is first divided between the national, or federal government, and the state and local government under a system known as Federalism. At the federal level, the Constitution again divides power between the three major branches of our federal government—the legislative, the executive, and the judicial.

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Separation of Power in the United States Essay

The division of power in the USA is primarily aimed at assuring the balance of power and preventing the dominance of one governmental institution over others. In other words, it is believed to be critical that the power capacity is equally spread within the country, and the minority has the same right to shape the decision making process as the majority. For this reason, there are some exclusively and concurrently held powers.

Among the powers that the Federal Government holds exclusively, there are such important powers as regulating interstate and international trade and making treaties and conducting foreign policy (Hall & Feldmeier, 2016). The exclusive character of the former seems to be reasonable as the foreign policy is supposed to guard the national interests and pursue the single policy. Therefore, sharing this power with the states would lead to confusing results and reduce the efficiency of the foreign policy, in general.

In the meantime, the question of regulating interstate trade is more ambiguous. It might be assumed that sharing this power with the State Government could make the trade more productive and flexible within the country. Thus, the relevant problem has been widely debated. Some analysts presume that an exclusive power of the Federal Government to impose regulations on interstate trade creates a conflicting environment unfavorable for effective performance. It is suggested that states’ participation in trade regulation could be productive in terms of finding timely solutions and managing cooperative relations (Johnson, 2004).

One of the most important powers that the State Government holds exclusively are regulating intrastate businesses and ratifying amendments to the Constitution (Hall & Feldmeier, 2016). The fact that the former power is held exclusively by the State Government is determined by the size of the territory under control. Within such a big country as the USA is, it seems to be reasonable that the State Government should perform the controlling function of the business run beyond its borders. As to the power to ratify amendments, this aspect is more questionable. Thus, the Constitution is supposed to be the document that unites all the states and provides a consistent legislative framework for their activity. Therefore, the question arises whether states should anyhow participate in its shaping. Practice shows that there have been numerous cases when the procedure of ratifying amendments was significantly complicated by the lack of agreement between the states ( Proposed amendments not ratified by the States , 2008). Therefore, there are grounds to assume that sharing this power with the Federal Government will simplify the procedure of implementing changes in the constitution.

Apart from the exclusive powers of the Federal Government and the State Governments, there are also those that are held concurrently. For example, both governments share the power of collecting taxes and establishing courts. It is critical that these powers are held concurrently, as it helps to fulfill the initial aim of power’s division – the assurance of equal authoritative capacities. The tax and the court aspects are one of the most important elements of the governing structure; therefore, it would be risky to supply one of the governments with an exclusive right to exercise these powers. On the one hand, the Federal Government should necessarily participate in decision making in terms of tax and courts. On the other hand, it is convenient that some of the problems might be resolved at the local level.

Reference List

Hall, D.J., & Feldmeier, J (2016). Constitutional Law: Governmental Powers and Individual Freedoms . New York, New York: Pearson Education.

Johnson, C.H. (2004). The Panda’s thumb: the modest and mercantilist original meaning of the commerce clause . Web.

Proposed amendments not ratified by the States . (2008). Web.

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Home — Essay Samples — Government & Politics — Separation of Powers — Separation Of Powers In The United States

Separation of Powers in The United States

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Published: Mar 18, 2021

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Separation of Powers

James Madison, Federalist, no. 51, 347--53

To what expedient then shall we finally resort for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to under-take a full developement of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies, should be drawn from the same fountain of authority, the people, through channels, having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties however, and some additional expence, would attend the execution of it. Some deviations therefore from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle; first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice, which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

It is equally evident that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.

This policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power; where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual, may be a centinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state.

But it is not possible to give to each department an equal power of self defence. In republican government the legislative authority, necessarily, predominates. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative, on the legislature, appears at first view to be the natural defence with which the executive magistrate should be armed. But perhaps it would be neither altogether safe, nor alone sufficient. On ordinary occasions, it might not be exerted with the requisite firmness; and on extraordinary occasions, it might be perfidiously abused. May not this defect of an absolute negative be supplied, by some qualified connection between this weaker department, and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department?

If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion, to the several state constitutions, and to the federal constitution, it will be found, that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.

There are moreover two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.

First . In a single republic, all the power surrendered by the people, is submitted to the administration of a single government; and usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controuled by itself.

Second . It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: The one by creating a will in the community independent of the majority, that is, of the society itself; the other by comprehending in the society so many separate descriptions of citizens, as will render an unjust combination of a majority of the whole, very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self appointed authority. This at best is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests, of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals or of the minority, will be in little danger from interested combinations of the majority. In a free government, the security for civil rights must be the same as for religious rights. It consists in the one case in the multiplicity of interests, and in the other, in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government: Since it shews that in exact proportion as the territory of the union may be formed into more circumscribed confederacies or states, oppressive combinations of a majority will be facilitated, the best security under the republican form, for the rights of every class of citizens, will be diminished; and consequently, the stability and independence of some member of the government, the only other security, must be proportionally increased. Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature where the weaker individual is not secured against the violence of the stronger: And as in the latter state even the stronger individuals are prompted by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves: So in the former state, will the more powerful factions or parties be gradually induced by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted, that if the state of Rhode Island was separated from the confederacy, and left to itself, the insecurity of rights under the popular form of government within such narrow limits, would be displayed by such reiterated oppressions of factious majorities, that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; and there being thus less danger to a minor from the will of the major party, there must be less pretext also, to provide for the security of the former, by introducing into the government a will not dependent on the latter; or in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self government. And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle .

Hamilton, Alexander; Madison, James; and Jay, John. The Federalist . Edited by Jacob E. Cooke. Middletown, Conn.: Wesleyan University Press, 1961.

Navigating Governance: the Separation of Powers in Action

Embark on a journey through the corridors of governance with ‘Navigating Governance: The Separation of Powers in Action.’ This essay delves into the pivotal role of the legislative branch, demystifying its functions beyond mere lawmaking. Explore the intricate dance of power, accountability, and representation as elected representatives navigate the complexities of democracy. Discover how Congress acts as a check on the executive and judicial branches, ensuring a delicate balance in the separation of powers. Beyond budgets and laws, witness the vibrant debates and compromises that shape the legislative process, reflecting the diverse voices that define modern democracy. Join the exploration of Congress, not just as a legislative factory but as the heartbeat of democratic ideals in action At PapersOwl, you’ll also come across free essay samples that pertain to Separation Of Powers.

How it works

Let’s unravel the mystery behind Congress – that powerhouse in the government responsible for making the rules we live by. It’s not just about passing laws; it’s the beating heart of democracy, representing the diverse voices and priorities of the people.

When we talk about Congress, we’re talking about two main parts: the House of Representatives and the Senate. These folks, elected from all corners of the country, come together to hash out laws that govern us all.

Picture it as a lively conversation where different perspectives collide, and compromises are the name of the game.

But Congress is not just a law factory; it’s also the sheriff in town, keeping an eye on the president and the courts to make sure they’re playing by the rules. This check-and-balance system ensures that no one branch of the government gets too powerful, maintaining the delicate dance of democracy.

And let’s not forget the purse strings. Congress controls the money – approving budgets and deciding where funds go. This isn’t just about dollars and cents; it’s about shaping the nation’s priorities and making sure the government is working for the people.

Sure, it’s not always a smooth ride. Congress is like a big, noisy family – lots of debates, occasional shouting matches, but ultimately, they find a way to make things work. The diversity of opinions mirrors our diverse society, creating a legislative melody that echoes the democratic spirit.

So, when we talk about Congress, we’re not just talking about suits on Capitol Hill; we’re talking about the essence of democracy in action. It’s the place where laws are made, power is checked, and our collective voice is heard. As we peek behind the curtain, we witness the intricate dance of governance that shapes the everyday fabric of our lives.

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8 Introduction to the Separation of Powers

• Published: October 2021
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The chapter introduces the separation of powers, examining its origins, its meaning, and its applicability to the UK constitution. The different types of division required by the principle are identified, with the threefold division between the legislature, executive, and courts, crosscut by divisions between institutional form, skill, and type of power. The two leading contenders for the objective of the principle, liberty, and efficiency, are considered. The chapter raises the question that will animate the following four chapters of the book: is the separation of powers a principle that applies to parliamentary constitutions, or should it be confined to presidential systems?

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