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Separation of powers

Articles related to
Separation of powers

Executive
Legislature
Judiciary

Separation of powers is the idea that the powers of a sovereign government should be split between two or more strongly independent entities, preventing any one person or group from gaining too much power.

Contents

The three-branch theory

The concept of the separation of powers finds its first ancestry in Aristotle, with refinements in the 17th and 18th centuries by, among others, James Harrington and John Locke. The most important work however, is that of Montesquieu. Montesquieu's writings on and criticism of the French monarchy at the time led him to come up with the concept of the separation of powers, invoked by many constitutional writers since, and still in use today. His theories were based on what he saw as the positive elements of the British constitutional structure and how he thought it could be improved. The branches named by Montesquieu are:

Case study: The United States

Main article: Separation of powers under the United States Constitution

Famously, the framers of the United States Constitution are said to have taken the best of many concepts including the then-new concept of the separation of powers in drafting the constitution. The concept is also prominent in the state governments of the United States.

In addition to a lack of democratically elected representatives ("no taxation without representation" was a political rallying cry during the American Revolution), as colonies of Britain, the founding fathers felt that the American states had suffered an abuse of the broad power of the monarchy. The British crown could both create laws and enforce them according to its own whims. As a remedy, the American Constitution limits the powers of the federal government through several means, but in particular by dividing up the power of the government among three competing branches of government. Each branch checks the actions of the others and balances their powers in some way. The following table describes the various "checks and balances" in detail.

Branch Constitutional Powers Executive counterbalance Legislative counterbalance Judicial counterbalance
Executive
  • Discretion over when to enforce the law
  • Discretion over how to run government services
  • Sole power to wage war (operational command of the military)
  • Responsibility for negotiating treaties
  • Power to appoint judges, diplomats, executive managers, and executive advisers
  • Power to arrest, detain, and search
  • Civilian and military chains of command constrain low-level executive officials to obey the policies of high-level officials.
  • Power to determine what laws exist
  • Power to write laws to constrain the internal operation of government
  • Power to write laws limiting searches, arrests, and detentions
  • Power to make laws concerning what regulations may be declared by the executive
  • Sole power to declare war
  • Responsibility for ratifying treaties (Senate)
  • Responsibility for confirming executive appointments (Senate)
  • Power to set the budget of the executive
  • Power to impeach and remove executive officers (two-thirds majority)
  • Power to set limits
  • Acts as a neutral mediator when the executive brings criminal or civil enforcement actions, and has the power to stop inappropriate enforcement
  • Issues warrants for searches and arrests
  • May declare actions of the executive to be illegal
  • Determines which laws apply to any given case
Legislative
  • Power to write laws
  • Power to tax, borrow money, and spend money
  • Sole power to declare war
  • Various other powers of the federal government
  • Subpoena power
  • May veto laws (but this may be overridden by a two-thirds majority in both houses)
  • May refuse to enforce certain laws
  • May refuse to spend money allocated for certain purposes
  • Sole power to wage war (operational command of the military)
  • Responsibility for making declarations (for example, declaring a state of emergency) and promulgating lawful regulations and executive orders
  • Executive Privilege (refusal to submit to legislative subpoena)
  • Each house is responsible for policing its own members.
  • May declare laws unconstitutional and unenforceable
  • Determines which laws apply to any given case
Judicial
  • Sole power to interpret the law and apply it to particular disputes
  • Power to determine the disposition of prisoners
  • Appointed for life
  • Power to compel testimony and the production of documents
  • Responsibility to appoint judges
  • Power to grant pardons
  • Sole power to pass Constitutional amendments (by two-thirds majority and with the consent of three-quarters of the states)
  • Power to determine the size and structure of the courts
  • Power to determine the budgets of the courts
  • Responsibility for confirming judicial nominees
  • Sole power to impeach and remove judges
  • Power to determine courts' jurisdiction (except Supreme Court's original jurisdiction)
  • The appeals process enforces uniform policies in a top-down fashion, but gives considerable discretion in individual cases to low-level judges
  • May only rule in cases of an actual dispute brought between actual petitioners
  • Polices its own members

Beyond the three branches

Note that the powers internal to the legislature are split between its two houses, the Senate and the House of Representatives. Only the House may originate spending bills. Only the House may impeach the President, but only the Senate may remove him or her from office. Only the Senate approves treaties and nominees. Each house can prevent the other from passing any law.

The federal executive is a very large bureaucracy, and due to civil service rules, most mid- and low-level employees do not change when a new person becomes President. (New high-level officials are usually appointed and must be confirmed by the Senate.) Moreover, semi-independent agencies (such as the Federal Reserve or the Federal Communications Commission) may be created by the legislature within the executive, which exercise legally defined regulatory powers. High-level regulators are appointed by the President and confirmed by the legislature, and must follow the law and perhaps certain lawful executive orders. But they often sit for long, fixed terms and enjoy reasonable independence from other policy makers. Because of its importance to modern governance, the regulatory bureaucracy of the executive is sometimes referred to as a "fourth" branch of government.

The press has also been described as a "fourth power" because of its considerable influence over public opinion (which it wields by widely distributing facts and opinions about the various branches of government). Public opinion in turn affects the outcome of elections. The press is also sometimes referred to as the Fourth Estate (after Montesquieu's three estates: the monarchy, the artistocracy, and the common people).

In many American states and local governments, executive authority and law enforcement authority are separated by allowing citizens to directly elect public prosecutors (district attorneys and state attorneys-general). In some states, judges are also directly elected.

Many localities also separate special powers from their executive and legislative branches, through the direct election of police chiefs, school boards, transit agency boards, park commissioners, insurance commissioners, and the like.

Juries (groups of randomly selected citizens) also have an important role in the check-and-balance system. They have the sole authority to determine the facts in most criminal and civil cases, acting as a powerful buffer against arbitrary enforcement by the executive and judicial branches. In many jurisdictions they are also used to determine whether or not a trial is warranted, and in some places Grand Juries have independent investigative powers with regard to government operations.

Other countries

The concept of separation of powers is implemented to differing degrees by many countries. Some interpretations of the doctrine suggest that deviations can be found in countries with parliamentary systems in which the senior members of executive in effect form a subset of the members of the legislature. Since the executive depends on continuing support from a majority of the legislature, the actions of the executive and the legislature can often seem to be identical, though the legislature on occasion will reject legislation supported by the executive, and may at times (such as March 1979 in the UK) bring down the executive.

Strong separation of powers is not considered essential by political scientists to establishing a stable, liberal democracy. Except for the United States, every country that has attempted a presidential system has failed in its first try at democracy, and today there are more parliamentary democracies than presidential. It would seem that the tension between the executive and legislature can lead to an authoritarian snapping point. Parliamentarianism also has its failures, but, in general, it has been more successful.

In the United Kingdom the prevailing governmental theory is parliamentary supremacy, though in practice it is limited by various legal instruments, international treaties and constitutional conventions. In parliamentary systems, what would be the "executive" branch in a three-party system is actually part of the legistlative branch. The Crown has distinct functions in its different spheres. Curiosities - such as the Lord Chancellor having an executive, legislative, and judicial role; and the House of Lords being a legislative chamber, but including some senior judges - are in the process of reform, but have been defended on the grounds that they discourage judges from making new law by judicial rather than legislative means.

Related restraint-of-power concepts

  • Federalism - (also known as vertical separation of powers) Preventing abuse by dividing governing powers, the separation is usually between municipal, provincial and national governments.
  • Rule of law - Prevents arbitrary exercise of executive power, preserves general and minority rights, and promotes stability and predictability.
  • Democracy - Attempts to constrain elected branches of government to act in the public interest, not in self-interest.
  • Separation of church and state or La´citÚ - Ensures freedom of religion by preventing government interference in its practice. Also constrains the power of government by maintaining freedom of conscience and belief.
  • Civilian control over the military - Helps prevent dictatorship through military rule.

See also

External links

  • Wikibooks: The Three Branches http://en.wikibooks.org/wiki/The_Three_Branches
  • Separation of Powers Topic at USConstitution.net http://www.usconstitution.net/consttop_sepp.html
  • Historical impeachments http://air.fjc.gov/history/topics/topics_ji_bdy.html of federal judges.


Last updated: 02-07-2005 13:09:20
Last updated: 05-03-2005 17:50:55