Separation of Powers and Checks and Balances in the U.S.

Introduction: Sovereignty and the Division of Power

The American system of government consists of three powerful units — the legislative, the executive, and the judicial — each of which is relatively autonomous. Although this division of power is most often called a "separation of powers," it is important to recognize that there is no complete division of power among the three governmental units. On the contrary, "ultimate sovereignty (power) in the United States resides with the people" (U.S. Courts). Because the people are the ultimate holders of power, no complete separation of powers is possible. However, to prevent any single branch of government from taking too much power and thereby depriving the people of their sovereignty:

The Framers wrote a Constitution with a system of checks and balances. Under a system of checks and balances, power is divided among different branches of government. This system is based upon the idea that each branch will be protective of its own power and, thus, prevent intrusions upon it from other branches — thereby preventing any one branch of government from becoming too powerful. (U.S. Courts).

Roles and Powers of Each Branch

Congress fulfills the legislative role and is the only body that can make federal laws. Moreover, Congress cannot delegate its legislative powers to any other governmental body, though it can delegate some of its lesser powers to other branches. Congress also retains some control over the executive and judicial branches through the power of impeachment.

The President fulfills the executive role and oversees executive officers who ensure that the nation's laws are enforced. Presidential power, however, extends only to executive agencies, not to quasi-judicial or legislative agencies. The executive branch exercises some control over the judiciary through the power to nominate judicial appointees, and it exercises some control over the legislative branch through the power of the presidential veto.

Judicial power is vested in the Supreme Court and the lower courts. This power is exercised only by constitutional courts; although Congress can establish legislative courts to determine issues of public rights, those courts cannot exercise judicial power.

The System of Checks and Balances

The three branches are interrelated through the system of checks and balances. It is important to understand that a true separation of powers actually requires some oversight by other branches. As James Madison argued in the Federalist Papers, unless the three departments "be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained" (Madison). Therefore, each branch is granted some type of control over the others.

Congress has the power to establish compensation for judges, the President, and members of Congress, though any changes do not take effect during the current term of those officeholders. Congress can impeach members of the executive and the judiciary; the House of Representatives brings articles of impeachment and the Senate conducts the trial. In addition, if no presidential candidate obtains a majority in the Electoral College, the House of Representatives chooses the President — though this scenario is unlikely given America's entrenched two-party system. The Senate must also consent to many executive appointments. Congress exercises control over the judiciary by establishing inferior courts and determining their jurisdiction, and the Senate must consent to the President's judicial appointments.

The Executive's role in relation to the other branches is perhaps the most visible. The Vice President, a member of the executive branch, also serves as president of the Senate. The President has the power to appoint federal judges, to veto legislation (though Congress may override a presidential veto), and to override judicial decisions by issuing pardons or reprieves.

While the executive and legislative branches interact with each other in a direct manner, the judicial branch interacts with them in a more detached way — primarily through the mechanism of judicial review, which the Supreme Court established in the landmark case of Marbury v. Madison, 5 U.S. 137 (1803). The Constitution does not explicitly grant the power of judicial review to the federal courts. Congress may also limit the power of the federal courts through its authority to designate jurisdiction. The Chief Justice presides over presidential impeachment trials, giving the judiciary a direct role in executive accountability. Although the judiciary has traditionally been considered the weakest branch, through judicial activism it has helped shape the nation's legislation and has significantly impacted how the executive branch functions.

Judicial Review and the Supreme Court's Role

To understand how the three branches balance their powers, one must understand both the separation of powers doctrine and the system of checks and balances. All three branches have engaged in struggles for power throughout American history. The Supreme Court seized a significant amount of power for itself when it established the doctrine of judicial review. In Marbury v. Madison, one of the central issues was whether Congress had the right to alter the jurisdiction of the Supreme Court. More broadly, the question was how the Supreme Court would resolve a conflict between the Constitution and an act of Congress. The Court determined that it could void acts of Congress, holding that:

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply. Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions." 5 U.S. 137, 177–178.

For example, in the Pentagon Papers case, New York Times v. United States, 403 U.S. 713 (1971), the Supreme Court determined that the executive branch had violated the First Amendment of the Constitution by attempting to restrain the publication of certain documents:

"In 1971, the New York Times and the Washington Post obtained copies of a classified study stolen from the Department of Defense, History of U.S. Decision-Making Process on Viet Nam Policy, popularly called The Pentagon Papers. After some delay, the newspapers began publishing the documents. The Department of Justice sought injunctions from federal district courts in New York and the District of Columbia against further publication." (Murphy, Fleming, Barber, and Macedo).

Building on its prior cases, the Court determined that in order to issue prior restraints on First Amendment rights, the government must meet a heavy burden to justify such a restraint. The Court found that the government had not met that burden.

Conclusion: Balancing Power in Practice

In addition to guarding against one branch encroaching upon the powers of another, the federal government has also taken steps to protect against any single person taking too much power. 18 U.S.C.S. § 201(b)(2) provides that:

"Whoever — being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for: (A) being influenced in the performance of any official act; (B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or (C) being induced to do or omit to do any act in violation of the official duty of such official or person." 18 U.S.C.S. § 201(b)(2).

The Court also draws a distinction between a President acting in his official capacity and acts performed outside of that capacity. In Clinton v. Jones, 520 U.S. 681 (1997), the Court determined that even a sitting President does not have immunity from civil liability for unofficial acts performed before taking office. The doctrine of separation of powers, the Court held, was established to safeguard against the encroachment of one branch upon another — not to place any member of the executive or legislative branch beyond the reach of the law during their time in office.