Separation of Powers and Checks and Balances
The separation of powers and checks and balances doctrines form the core of the United States’ government. These two tenets have provided a stable structure for our government for well over 200 years.
This presentation examines the origins of the doctrines of separation of powers and checks and balances. Additionally, we will look at and explain how these doctrines currently operate.
While the American government model is based on separation of powers between the judicial, executive, and legislative branches, the boundaries between these branches are not always clear. The framers of the Constitution sought to protect individual liberty through shared government power. Three assumptions underline the necessity to separate powers:
(1) Government is run by humans, therefore it reflects human nature;
(2) It is human nature for people to act ambitiously in their own self-interests; and
(3) Concentrating governmental authority in one such self-interested entity’s control will provide governmental leaders with the power and ability to oppress their constituents.
James Madison, an important contributor to the Constitution, defended these beliefs in The Federalist Papers by writing, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny."
The Two-Pronged Approach
The Framers believed that counteracting these tendencies required the creation of a type of government where “Ambition must be made to counteract ambition.” Drawing upon their experiences with then-existing state governments, they devised a two-prong approach to American government:
Prong #1: A doctrine of the separation of powers gives each of the three branches of government independence from the others, gives each branch the sole power to perform specific functions and prohibits each from performing some of the other branches’ functions.
Prong #2: A doctrine of checks and balances imposes a series of “counterweight[s]” that interlock each branch, preventing any one branch of from imposing its will on the other or the country. The doctrine of checks and balances “provides each branch with weapons to fight off encroachment by the other two branches.”
The Framers developed rules for how a government based on these two concepts would be constituted in what became the United States Constitution. One will not, however, find the words “separation of powers” or “checks and balances” written anywhere in the Constitution. Instead, these concepts are implied from the system created by the Constitution. Addressing the matter, Supreme Court Justice Robert Jackson wrote: “The doctrine of separation of powers… arises, not from … any … single provision of the Constitution, but because ‘behind the words of the constitutional provisions are postulates which limit and control.’”
Note that, in addition to the separation of powers in the federal government (a “horizontal” separation of powers), there is also a “vertical” separation between the federal government and state governments, also assigning each its own sphere of authority. This “vertical” separation is also known as “federalism.”
Roles of Each Branch
The legislative branch’s function is to create the laws. The executive branch is given authority to implement and enforce the legislation that is passed by the legislative branch. Finally, the judicial branch interprets the meaning of the laws and decides cases involving the creation and enforcement of these laws and of the Constitution itself.
In practice, each of the branches has used the authority given it by the Constitution to expand its powers. For example, the Constitution gives Congress authority to regulate interstate commerce, and Congress has used this authority very broadly to regulate industries such as aviation, securities and commerce. Moreover, its power to tax and spend allows the legislative branch to discourage certain behaviors by increasing the costs of these behaviors. The Constitution provides the President with the power to negotiate treaties and appoint ambassadors, but Presidents have used that power to conduct foreign relations and negotiate agreements that are not expressly anticipated by the Constitution. The judicial branch has used its power of “judicial review” to become the last word on the abilities of the other branches to carry out their powers.
These are not necessarily “bad” things, either. The framers anticipated that branches would compete for power, which is why the intricacies of the checks and balances system that they developed is so important and has proven so useful.
Checks and balances
The checks and balances system empowers one branch of government to oversee the work of another branch in a harmonious manner. The framers recognized that if a single branch of government was left unchecked, it could amass enough strength to overpower the other two branches. To avoid any problems, the Framers tempered the separation of powers with a series of checks and balances.
The system of checks and balances has textual support in the Constitution. Under Article I of the Constitution, the legislative branch can oversee the executive branch’s actions in the following ways:
· Override a Presidential veto by vote of two-thirds of both the House of Representatives and the Senate;
· Declare war;
· Approve certain Presidential appointments;
· Approve treaties made by the President;
· Approve the funds needed to run the Executive branch;
· Remove the President from office through impeachment
In turn, the executive branch has oversight over the legislative branch in many ways. The President:
· Can veto legislation
· Can require Congress to meet in what is called a “Special Session”;
· Through the Vice President, preside over the Senate and have his vote serve as a tie-breaker
The judicial branch’s checks on the President and Congress lie in its power of judicial review. As advocated by Alexander Hamilton in the Federalist Papers, the Supreme Court’s status as the final arbiter of the Constitution implies its ability to nullify the laws or actions of the other branches. In fact, it took the Supreme Court only until 1803 to strike down its first congressional act as unconstitutional. It should be noted as well that lower courts also have the power of judicial review, though their decisions can always be appealed to higher courts until the case gets to the United States Supreme Court.
Both other branches have significant checks on the judicial branch in that the President appoints federal judges with consent of the Senate. Additionally, Congress can amend rules or pass new ones to replace laws that have been struck down.
The growth of the United States’ government has created separation of powers issues that go beyond what the framers could have envisioned. The need for practicality has made certain encroachments on separated powers accepted practice. The following examples demonstrate how these “shared” powers operate in the current political context.
The first example is administrative regulations, which the executive branch can issue. It is impossible for Congress to foresee all the ways that the laws it writes and passes will be implemented. Administrative regulations govern how the executive branch will implement a law. Examples include treasury regulations promulgated by the Internal Revenue Service and aviation security rules written by the Transportation Safety Administration or Federal Aviation Administration. Unless contradicted by other federal law, these regulations have the same force as laws passed by Congress.
Another example is administrative adjudications. Many executive agencies retain the power to make judicial decisions about violations of agency regulations. The decisions are made by Administrative Law Judges, appointed and employed by the agency and have the same binding effect as decisions made by federal judges. In this way, executive agencies serve judicial functions.
A third example concerns war powers. According to Section 8 of Article I of the Constitution, the power to declare war is reserved to Congress. Despite this, numerous presidents have committed troops to combat without Congressional approval.
This does not mean, however, that a branch can encroach on another with impunity. In Clinton v. City of New York, for example, the Supreme Court overturned the Line Item Veto Act, which allowed the President to veto part of a bill without vetoing the whole bill. The Court found that it was an unlawful encroachment because it contravened the constitutional requirement that bills be approved or vetoed in their entirety. Moreover, in INS v. Chadha, the Supreme Court invalidated legislation that allowed either house of Congress, acting alone, to overturn certain decisions by the Attorney General regarding deportations. The Court held that the bill improperly encroached on the Constitution’s requirement that legislation be passed by both houses. In another case, Bowsher v. Synar, the Court overturned a law that allowed Congress to remove the U.S. Comptroller General for “inefficiency, 'neglect of duty,' or 'malfeasance.'” The Court found that the law violated the constitutional requirement that executive officers be removed through the impeachment process.
James Madison wrote, “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” Our doctrines of separation of powers and checks and balances are in place to serve as these precautions. These flexible approaches have ensured the United States’ stability as a functioning democracy.
 Dry, Murray, The Separation of Powers and Representative Government, Political Science Reviewer, Fall, 1973 - Vol. 3, No. 1, p. 44 (available at https://isistatic.org/journal-archive/pr/03_01/dry.pdf) (accessed June 17, 2017).
 The Federalist Papers, No. 51. “But what is government itself, but the greatest of all reflections on human nature?”
 The Federalist Papers, id. “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
 The Federalist Papers, No. 47.
 Dry, Id., at 43.
 University of Missouri-Kansas City, Exploring Constitutional Conflicts: Separation of Powers: The Issue: When do the actions of one branch of the federal government unconstitutionally intrude upon the powers of another branch? (available at http://law2.umkc.edu/faculty/projects/ftrials/conlaw/separationofpowers.htm) (accessed June 17, 2017).
 National Mut. Ins. Co. v. Tidewater Transfer Co., Inc., 337 U.S. 582, 590-591 (1949), quoting, Chief Justice Charles Evans Hughes in Principality of Monaco v. Mississippi, 292 U.S. 313, 322 (1934).
 Clinton v. City of New York, 524 U.S. 417 (1998).
 U.S. Const. Art. I, Sec. 8.
 U.S. Const. Art. I, Sec. 8.
 U.S. Const. Art. II, Sec 2.
 Marbury v. Madison, 5 U.S. 137 (1803)
 Clinton v. City of New York, 524 U.S. 417 (1998).
 INS v. Chadha, 462 U.S. 919 (1983).
 Bowsher v. Synar, 478 U.S. 714 (1986).
 The Federalist Papers, No. 51.