Separation of Powers
Separation of Powers is one of five limits on government in KTB Prep’s American Government and Civics series which is designed to acquaint users with the origins, concepts, organizations, and policies of the United States government and political system. The goal is greater familiarization with the rights and obligations of citizenship at the local, state, national, and global levels and the history of our nation as a democracy.
Limits on Government
Throughout history, there have been governments that had too much power and
ended up abusing that power. They limited people’s freedom, mistreated people, and even committed mass murders. In some places, that still happens today. Government isn’t evil—but the people who run governments do need to be kept in check so they can’t abuse their power. There are 5 recognized limits on power in Republican governments our Constitution ensures:
- Rule of Law
- Separation of Powers
- Consent of the Governed
- Majority Rule with Minority Rights
Separation of Powers
Separation of powers is a model for the governance of a state (or who controls the state). first developed in ancient Greece. Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. The typical division of branches is into a legislature, an executive, and a judiciary.
The legislature is the law-making body of a political unit, usually a national government, that has power to enact, amend, and repeal public policy. Laws enacted are known as legislation. Legislatures observe and steer governing actions and usually have exclusive authority to amend the budget or budgets involved in the process. The most common names for national legislatures are “parliament” and “congress“.
The House of Representatives
As per the Constitution, the U.S. House of Representatives makes and passes federal laws. The House is one of Congress’s two chambers, and part of the federal government’s legislative branch. The number of voting representatives in the House is fixed by law at no more than 435, proportionally representing the population of the 50 states. Leadership is composed of:
- Speaker of the House – acts as leader of the House and combines several roles: the institutional role of presiding officer and administrative head of the House, the role of leader of the majority party in the House, and the representative role of an elected member of the House. The Speaker of the House is second in line to succeed the President, after the Vice President.
- Majority Leader – represents majority party on the House Floor
- Majority Whip – assists leadership in managing party’s legislative program
As per the Constitution, the United States Senate also makes and passes federal laws. The Senate is one of Congress’s two chambers, and part of the federal government’s legislative branch. The number of voting representatives in the Senate is fixed by law at no more than 2 per state giving us 100 currently. Leadership is composed of:
- President of the Senate – Vice President of the United States casts tiebreaking vote
- President Pro Tempore – Presides over Senate in absence over Vice President
The executive branch is the part of the government that has authority over and responsibility for the daily administration of the state. The executive branch executes, or enforces the law. The executive officer is not supposed to make laws (the role of the legislature) or interpret them (the role of the judiciary). The role of the executive is to enforce the law as written by the legislature and interpreted by the judiciary.
The executive can issue orders or take action that mimic the effects of law but do not have the force of law. Executive bureaucracies are commonly the source of regulations.
In this context, the executive branch of government consists of leader(s) of an office or multiple offices. Specifically, the top leadership roles of the executive branch in America include:
- head of state—often the leader, the President, the chief public representative and living symbol of national unity.
- head of government—often the de facto leader, the President, overseeing the administration of all affairs of state.
- Secretary of Defense—oversees the armed forces, determines military policy and manages external safety
- DHS secretary—oversees the police force, enforces the law and manages internal safety.
- Secretary of State—oversees the diplomatic service, determines foreign policy and manages foreign relations.
- Treasury Secretary—oversees the treasury, determines fiscal policy and manages national budget.
- Attorney General—oversees criminal prosecutions, corrections, and enforcement of court orders.
In a presidential system like America, the leader of the executive branch is both the head of state and head of government. In a constitutional monarchy like England, the prime minister is the head of government.
The term “judiciary” is used to refer collectively to the personnel, such as judges, magistrates and other adjudicators, who form the core of a judiciary (sometimes referred to as a “bench”), as well as the staffs who keep the system running smoothly. Operationally in America, it’s the system of courts that interprets and applies the law in the name of the state.
While it provides a mechanism for the resolution of disputes, it does not make law (legislature) or enforce law (executive), but rather interpret law and apply it to the facts of each case. This branch of the state is often tasked with ensuring equal justice under law. It usually consists of a court of final appeal (called the “Supreme court” or “Constitutional court”), together with lower courts.
The doctrine of judicial review allows courts to annul laws and rules of the state when it finds them incompatible with a higher norm, such as primary legislation, the provisions of the constitution or international law. This means judges constitute a critical force for interpretation and implementation of a constitution, thus creating the body of constitutional law in common law countries like the United States.
In America, the judiciary has become increasingly active in issues related to economic rights established by the Constitution. The constitution has traditionally been treated as an abstract legal document disengaged from the economic policy of the state. This has led to judicial review of economic acts of the executive and legislative branches.
Separation of Powers Conclusion
Federalist No. 51 gives us the four elements necessary for the doctrine of separation of powers in our government:
- the idea of three separate and independent branches of government;
- the realization that government performs different kinds of functions, and the belief that there are unique functions appropriate to each branch;
- the belief that the personnel of the branches of government should be kept distinct, no one person being able to be a member of more than one branch of government at the same time;
- the belief that the legislature may not alter the distribution by delegating its powers to the executive or the judicial branch