POLITICAL SCIENCE COURSEWORK
THE SEPARATION OF POWERS
It has proved true, historically, that there is a natural tendency of governments to assume as much power as possible. To prevent this from happening in the United States, the framers of the Constitution divided the functions of the federal government among three branches: the executive branch, legislature or the lawmaking branch and the judiciary. These should be separate and enjoy equal power and independence. This separation of powers is in direct contrast to the government in Britain. Their Parliament is the single governing unit. Members of the executive–the Cabinet and the Prime Minister–are members of Parliament. The highest court of appeal is the House of Lords.
The separation of powers was also in contrast to the government under the Articles of Confederation. The Articles provided for no separate executive branch. The president was the presiding officer of the Congress. There was no national court system at all.
The framers of the Constitution decided on a government in which the three main functions would be held by three separate branches. The Congress was empowered to make laws. The president was empowered, through the departments and agencies of the executive branch, to enforce the laws. The president is thus the head of the bureaucracy–the non-elected officials of government. The Supreme Court was established as the highest judicial authority. John Adams referred to this three-part arrangement as a system of checks and balances that protect the people from authoritarian or arbitrary rule.
In addition to distributing power among the three branches of the federal government, the Constitution also distributes it among the states and the people. The Tenth Amendment specifically reserves all “powers not delegated to the United States” to the “States respectively, or to the people.” Within each state there are many other governmental units. Each local government, from the smallest village to the largest city, has its necessary powers. There are taxing bodies, such as school districts, that have the authority they need in order to operate.
Before continuing to mention how the separation of powers is applied in the United States presidential system, let me briefly explain the structure of the presidential system.
The federal government of the United States was created by the Constitution, which went into operation in 1789 when the first Congress convened and George Washington took the oath of office as president. The government is called federal because it was formed by a compact (the Constitution) among 13 political units (the states). These states agreed to give up part of their independence, or sovereignty, in order to form a central authority and submit themselves to it. Thus, what was essentially a group of 13 separate countries under the Articles of Confederation united to form one nation under the Constitution.
When the Declaration of Independence was issued in 1776, it used the term United States of America. Until the Constitution was adopted and ratified, however, the 13 states did not really form one nation. They each held onto so many powers individually, including conducting foreign policy and trade negotiations, that the Continental Congress could only do what the states allowed. The Articles were never the law of the land to the extent that the Constitution is. In essence, the United States as a nation did not come into existence until the Constitution began to function as the framework of the government.
Once the Constitution was in place, tension between the states and the federal government did not automatically cease. Many political thinkers believed that the states were really the supreme authority.
According to this viewpoint, states could nullify acts of the federal government that were disagreeable to them. One of the strongest proponents of this view was John C. Calhoun, senator from South Carolina. His chief opponent was Chief Justice John Marshall. Calhoun’s position, called states’ rights, has persisted to the present. It was seriously undermined, however, by the American Civil War. Since that war the federal government has gained much power at the expense of the states.
The best known characteristic of the presidential system is the separation of powers. The three principal functions of the government are the formal promulgation of the law, its administration, and its adjudication.
These are established in separate and co-ordinate branches. We call them the legislative, the executive and the judicial; they are independent of one another, but are at the same time made interdependent. (The judicial branch enjoys a considerable degree of independence in all nations subscribing to the Anglo-American tradition of jurisprudence, regardless of whether they have adopted the presidential system.)
One of the most difficult debates in the Constitutional Convention of 1787 centred on representation. The large states desired representation in proportion to population in the proposed national legislature. This would, of course, have allowed them to control legislation because they would have had more legislators than small states. The small states, conversely, wanted equal representation. On June 11, 1787, delegate Roger Sherman of Connecticut proposed the plan that was eventually adopted. It called for a bicameral, or two-house, legislature in which one house has proportional representation and the other equal representation. Thus the small states were placated by having equal representation and the large states with proportional representation. After much wrangling among the delegates, the plan was adopted on July 16.
The Congress was created by Article I, section 1, of the Constitution: “All legislative powers herein shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Chief among the powers of congress is the power to assess and collect taxes, for it is this authority that makes running the whole government, including the other two branches, possible. The power to decide how to spend money lies in both houses, but only the House of Representatives has the authority to originate bills for raising revenue.
Each house, because it is the judge of the “qualifications of its own members,” may punish its members for misbehaviour. Members can be expelled by a two-thirds vote.
The House of Representatives was intended by the framers of the Constitution to reflect the popular will. Its members therefore are directly elected by the people. The number of representatives from each state is proportional to the size of the state’s population. No state, however, has less than one representative. Representation is reapportioned after every census. After the states receive their quota of seats, the states themselves determine the boundaries of the congressional districts. In 1964 the Supreme Court ruled that population sizes within each district must be approximately equal. The special powers of the House are two: the right to originate revenue bills and the right to begin impeachment proceedings.
The Senate has 100 members, two for each state. Since 1913, when the 17th Amendment was ratified, senators have been directly elected by the people. Prior to that year they were elected by state legislatures. When vacancies occur between elections, state governors appoint replacements.
The Senate has some special powers not accorded to the House. It approves or disapproves of presidential appointments; it can approve treaties, by a two-thirds vote; and it is the court for impeachment trials.
To become a senator an individual must be at least 30 years of age, a citizen of the United States for nine years, and a resident of the state from which elected. The full term of a senator is six years. The terms of one third of the members expire every two years.
The presiding officer of the Senate is the vice-president of the United States. It is the only duty for that official prescribed by the Constitution. In his absence the presiding officer is the president pro tempore, meaning “for the time being,” who is elected by the membership. As in the House, there is a majority leader and a minority leader. The Senate majority leader is often a powerful figure in government, especially if the president is of the other party.
The Senate, in its floor debates, has more freedom of action than does the House. As a rule, debate on a measure continues until every senator has had a chance to say everything he wishes on it. Freedom of debate is occasionally abused by a filibuster, a device by which a senator can talk endlessly to prevent a bill from coming to a vote. Senate rules provide for stopping a filibuster by the application of cloture, or closing debate, which requires the support of two thirds of the members present and voting. The cloture rule was adopted in 1917.
Just as the delegates to the Constitutional Convention had differences over the nature of Congress, so too were there sharp disagreements on the nature of the Executive Office. Should there be one president or three? Should he serve for life or for a limited term? Was he eligible for re-election? Should he be elected by the people, by the governors of the states, or by Congress?
The outcome of the debates was Article II of the Constitution, outlining the office of the president. The presidency would consist of one individual holding office for four years but eligible for re-election. Because the delegates did not trust the people to elect a president directly, they established an indirect method. Electors chosen by state legislatures (and eventually by the voters) voted for candidates for the presidency. To be eligible for the presidency a person must be a native-born citizen, 35 years of age, and must have lived in the United States for at least 14 years.
Based on the example set by George Washington, successive presidents did not seek more than a second term until Franklin D. Roosevelt ran for office and was elected four times, beginning in 1932. The 22nd Amendment, ratified in 1951, limits the term of office for presidents.
The Constitution gives many specific powers to the president. Other powers have accrued to the office through laws passed by Congress, through interpretations of laws by the courts, and through the president’s position as leader of his party.
The president is charged with enforcing all federal laws and with supervising all federal administrative agencies. In practice these powers are delegated to subordinates. The president’s principal helpers include the White House staff, specialised agencies of the Executive Office, and the heads of executive departments and their agencies and bureau’s. Except for the White House staff, the individuals in charge of agencies and departments are appointed by the president, subject to approval by the Senate. The president nominates all officials, administrative or judicial, who are not civil-service employees.
The Constitution gives the president the power to grant reprieves and pardons to persons convicted of crimes against the United States. This power is denied only in the case of an individual convicted on impeachment.
The president exercises far-reaching powers in the conduct of foreign policy. In most cases he acts through the secretary of state and the Department of State. The president negotiates treaties, mostly through subordinates. These are subject to confirmation by a two-thirds vote in the Senate. He nominates ambassadors, ministers, and consuls to represent the United States abroad. He takes the lead in recognising new regimes or withholding official recognition.
Closely related to his foreign policy authority is the president’s role as commander in chief of all the armed forces. He appoints all commissioned officers of the Army, Navy, Air Force, and Marines. During wartime he may become involved in planning strategy.
Proper functioning of the government depends in great measure on the president’s relations with Congress. It is his responsibility to keep Congress informed of the need for new legislation. He must also submit an annual budget for all the government expenditures. The departments and agencies are required to send Congress periodic reports of their activities and members of departments and agencies are often required to testify before committees of Congress on matters of pending legislation or other issues.
In times of war or other national crisis, Congress usually grants the president emergency powers. These powers include the authority to issue orders regulating most phases of national life and the war effort, to organise special agencies of government, and to make appointments without confirmation.
In normal times, as well as during emergencies, Congress may pass laws establishing a policy but leaving the details to be worked out by the Executive Office. The president then publishes an executive order that has the force of law.
The only official duty of the vice-president is to preside over the Senate, though he does not take part in its deliberations. He casts a deciding vote in case of a tie. In the president’s absence he presides over meetings of the Cabinet. Originally there were no candidates for this office. The man receiving the second-largest number of votes for president became vice-president. In 1801 Thomas Jefferson and Aaron Burr each received 73 electoral votes, and the House of Representatives had to decide between the two candidates. After 36 ballots Jefferson became president and Burr vice-president. As the party system developed, separate candidates were nominated for each office on the same ticket.
This is the body charged with enforcing laws and, in some states, upholding the constitutional rules.
This includes the Supreme Court and State courts.
The Constitution is a written document whose words cannot be changed except by the process of amendment. But the meaning of the words is not always interpreted in the same way by members of opposing political parties or by persons engaged in lawsuits over property or human rights. Thus it has been necessary for someone to interpret it–that is, to determine what it means in any controversy. This duty is entrusted to the Supreme Court. It provides that the Constitution and the laws made “in pursuance thereof, shall be the supreme law of the land.”
The Supreme Court therefore has two kinds of duties: one, to decide cases of law; the other, to decide what the Constitution means. Sometimes people who have been dissatisfied with decisions made by the Supreme Court have said that the power to determine the meaning of the Constitution ought to be exercised by Congress; but since a law inconsistent with the Constitution cannot be a valid law, it must not be enforced. Only the court before which the enforcement of such a law comes can easily make the decision.
In American states, members of all three branches are commonly elected directly by voters. The federal government does not have an elected judiciary; judges are appointed and can be removed only under most unusual circumstances.
The interdependence of the three branches is secured by what is obverse of the separation of powers, namely the checks and balances system as mentioned earlier.
The separation of powers is important in a political system. Montesquieu truly believed this, he says when legislative power is united with executive power in a single person or a single body of magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically.
Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to the executive power, the judge could have the force of an oppressor.
The prime concern of Montesquieu was to avoid the access of political power, which might occur if too much power was concentrated into the hands of one area of government.
But the separation of power in the United States is incomplete. Here are a few examples of how the separation of powers in the American political system is incomplete:
The political system of the USA is, in reality, is dominated by the president, who as the focus of popular attention can appeal to the public directly in a way that the other elements of the system cannot.
Congress can pass a bill, but the President can prevent it from becoming a law by vetoing it. Should the president veto a bill, it may be enacted over his veto by a two-thirds vote of both houses. Failure to re-pass in either house kills it. If a bill is not signed or returned by the president, it becomes law after ten working days. If the president does not return a bill and Congress has adjourned in the meantime, however, the bill does not become law. This procedure is called a pocket veto. Bills introduced in either house are first sent to the committee having jurisdiction over them. A committee can kill a bill, bury it, or amend it. If the bill is reported favourably out of committee, it is sent to the floor of the respective house for debate and passage–with or without amendments. A bill passed by one house is sent to the other for consideration. There it may be passed intact, it may be amended and passed, or it may be defeated. If one house does not accept the version of a bill passed by the other house, the bill is sent to a conference committee composed of members of both houses. After final passage the bill is signed by the speaker of the House and the vice-president (who is the presiding officer of the Senate) and sent to the president for his signature. If the bill does become law, it is subject to interpretation by the courts, which decide its actual application to specific cases. The courts may even declare the law to be unconstitutional, thus setting it aside. However, the judicial interpretation may, in turn, be overruled if Congress enacts legislation that overcomes the courts’ objections to the earlier law.
Committees of each house are controlled by the political party that has a majority of members in that house. Appointments to committees are mostly based on seniority. The ranking, or most senior, member normally becomes chairman. In addition to its committee and lawmaking activities, Congress also exercises a general legal control over all government employees. It may also exercise political control through the Senate’s power of approving presidential nominations. Congress cannot remove officials from office except by its power of impeachment. In an impeachment proceeding the House acts as a grand jury, gathering evidence and securing an indictment. The Senate then becomes the court in which the case is tried. There has only been one complete presidential impeachment proceeding in American history–that of Andrew Johnson–and he was acquitted. A bill of impeachment was voted against Richard M. Nixon, but he resigned before a Senate trial could begin.
The president can appoint a judge to a Federal court, but the appointment is subject to approval of the Senate, and a judge, like the president himself, may be impeached and, if convicted, removed from office by a procedure involving the two houses of congress.
If a member of an executive branch fails to perform some act that a citizen feels is his legal duty, the citizen may ask a court to issue an order requiring the official to perform his duty.
If congressional leaders are dissatisfied with the way in which an executive agency is administered, they may conduct an investigation that may cause the policies of the agency to be altered, either because of resulting new legislation, or because of the glaring headlines concerning the agency. An investigation may also be conducted by a federal grand jury or, in certain circumstances, by a Federal judge.
The checks and balances system is based on the idea that in a democracy no one person or institution should ever be able to gain absolute power and control, and the best way to prevent this from happening is to have each officeholder hold some power over other officeholders. But this is not complete in the American political system, as we have seen the ability of different parts of the political system are able to check one another, i.e. the government can veto a bill from congress, congress can impeach the President. Therefore I conclude that the separation of powers in the American political system is incomplete.