Separation of powers in constitutional government

Separation of Powers Under the United States Constitution

The Doctrine of Separation of Powers:

Separation of Powers is a doctrine enumerated by the United States Constitution that is a fundamental part of the structure of the U.S. government. However, in principle, it is a concept that long predated the American Revolution, or for that matter, the British

Royal Crown whose oligarch icy inspired the formation of a democratic republic in the New World. In fact, separation of governmental powers can be traced to ancient Rome (Friedman, 2005).

In general, the theory behind separating governmental powers into distinct branches is designed to reduce the likelihood of tyrannical corruption of governmental power (Dershowitz, 2002). By separately delegating the various major components of governmental authority and control into distinct entities, each branch of government is, in theory at least, subject to a modicum of control by the other branches. However, as first pointed out in connection with the U.S. government in several Federalist papers authored during the phase of constitutional formation and ratification, there are limits to the ability of independent branches to impose effective checks and balances on other branches (Hall, 1992).

This is primarily because the branch authorized to interpret or enforce the laws necessary to ensure separation of powers maintains the very function whose corruption would enable the potential undermining of its constitutional principles (Friedman, 2005).

Indeed, the principal challenge to the Separation of Powers doctrine has arisen most frequently in conjunction with attempts by several modern-era Chief Executives of the Executive Branch of government to persuade the highest decision-making members of the Judicial Branch to define the powers and privileges of the Chief Executive.

Complicating the possible checks and balances dynamic is the fact that the Chief

Executive also maintains the constitutional authority to appoint the decision-making members of the highest level of the Judicial Branch.

Article I Section 8 of the U.S. Constitution specifically delegates the authority to make law to the Legislative Branch represented by Congress. Pursuant to that authority, the U.S. Congress maintains exclusive legislative authority, which cannot be usurped even by the President. The Executive Branch of the U.S. government maintains the authority and responsibility to ensure that the laws established by the Legislative Branch are properly enforced.

As the Chief Executive, the President exercises this responsibility mainly through the appointment of judges to the federal courts and, especially, to the U.S. Supreme

Court, which maintains exclusive authority to interpret the U.S. Constitution and to resolve issues of law and any conflicts between the laws of individual states and the Constitution (Dershowitz, 2002). Several modern cases have required the Judicial

Branch to apply the checks and balances principle to unconstitutional actions by the other branches of government. In 1983, the Supreme Court prohibited the Legislative Branch from vetoing decisions issued by the Executive Branch (as represented by the Attorney

General) arising in the Reagan administration and later, in 1998, by applying the separation of powers doctrine to the diametrically opposite side of the same general issue, in prohibiting the delegation of congressional legislative authority to the president during the Clinton administration (Friedman, 2005).

Morrison v. Olson, 487 U.S. 654 (1988):

The case arose during the Reagan administration when President Reagan

Instructed Environmental Protection Agency (EPA) and components of the U.S.

Department of Justice to furnish documents formally subpoenaed by the House of Representatives in connection with its investigation of issues relating to enforcement of law, specifically, the Superfund law (Friedman, 2005). After the committees established by the House of Representatives to investigate the Superfund issues determined that Assistant Attorney General for the Office of Legal Counsel, Ted Olson, may have perjured himself in front of the House Judiciary Committee, the Committee Chairman requested the appointment of an independent counsel, Alexia Morrison, to investigate the prospect of charging Olson for his misleading statements, pursuant to the Independent