separation of powers

(redirected from Separation of power)
Also found in: Encyclopedia.

Separation of Powers

The division of state and federal government into three independent branches.

The first three articles of the U.S. Constitution call for the powers of the federal government to be divided among three separate branches: the legislative, the executive, and the judiciary branch. Under the separation of powers, each branch is independent, has a separate function, and may not usurp the functions of another branch. However, the branches are interrelated. They cooperate with one another and also prevent one another from attempting to assume too much power. This relationship is described as one of checks and balances, where the functions of one branch serve to contain and modify the power of another. Through this elaborate system of safeguards, the Framers of the Constitution sought to protect the nation against tyranny.

Under the separation of powers, each branch of government has a specific function. The legislative branch—the Congress—makes the laws. The executive branch—the president—implements the laws. The judiciary—the court system—interprets the laws and decides legal controversies. The system of federal taxation provides a good example of each branch at work. Congress passes legislation regarding taxes. The president is responsible for appointing a director of the Internal Revenue Service to carry out the law through the collection of taxes. The courts rule on cases concerning the application of the tax laws.

Under the system of checks and balances, each branch acts as a restraint on the powers of the other two. The president can either sign the legislation of Congress, making it law, or Veto it. The Congress, through the Senate, has the power of advise and consent on presidential appointments and can therefore reject an appointee. The courts, given the sole power to interpret the Constitution and the laws, can uphold or overturn acts of the legislature or rule on actions by the president. Most judges are appointed, and therefore Congress and the president can affect the judiciary. Thus at no time does all authority rest with a single branch of government. Instead, power is measured, apportioned, and restrained among the three government branches. The states also follow the three-part model of government, through state governors, state legislatures, and the state court systems.

Our system of government in the United States is largely credited to James Madison and is sometimes called the Madisonian model. Madison set forth his belief in the need for balanced government power in The Federalist, No. 51. However, the concept of separation of powers did not originate with Madison. It is often attributed to the French philosopher baron montesquieu, who described it in 1748. At the Constitutional Convention of 1787, Madison played a leading role in persuading the majority of the Framers to incorporate the concept into the Constitution.

Cross-references

Congress of the United States; Constitution of the United States; Judicial Review; President of the United States; Presidential Powers; Supreme Court of the United States.

separation of powers

the doctrine, derived from Locke and Montesquieu, that power should not be concentrated but separated. The traditional separation is between the legislature, the executive and the judiciary. A complete separation is unwieldy. In the UK it is nothing like complete, with the Lord Chancellor, the highest judicial officer, and the Lord Advocate, the highest judicial officer in Scotland, sitting in Parliament. Indeed, the Lord Chancellor sits in Cabinet. Members of Parliament sit in the government, and ‘the government’ in the sense of appointed members of the government extends usually to a very large number of Members of Parliament. In the USA, the theory was carried to its most practically perfect. Executive power lies in the President, legislative power in the Congress and judicial power is in the Supreme Court. However, the need to function and coordinate is achieved by a series of checks and balances that also serve to prevent either of the three organs gaining the ascendancy. The Supreme Court can strike down legislation, but its members can be impeached or its membership extended with presidential appointments while these appointments themselves may not be confirmed by the Senate.

A similar situation can be seen in the EUROPEAN UNION, where the Council, the Commission and the Parliament are linked in a series of relationships that are even more sophisticated than the system in the USA because they have flexibility built into their structure, for example, to allow the Parliament to acquire more and more power as it becomes ever more representative of the peoples of Europe.

References in periodicals archive ?
Which of the following statements about separation of powers is not true?
8) The separation of powers provides a lens for analyzing second-order questions of detention law because it highlights institutional characteristics of the executive and the legislature that are often thought to be relevant to detention policy, such as expertise, speed, deliberation, and attention to rights-related externalities.
He said that, "the major powers granted to the Prime Minster and the complete separation of powers will create a new constitutional balance in favor of elected institutions within the framework of respect for the monarchy.
In the Supreme Court ruling, only the first was examined -- separation of powers -- and, as a clear breach was identified, the court did not delve into the rest of the arguments.
The traditional legal interpretation of the episode holds that the Court's decision set the precedent for the absolute ban on advisory opinions and hence served to define more clearly the proper jurisdiction of the courts under the separation of powers doctrine (Story 1851, [section] 1571, 362 and 362n2; Tribe 1978, 57; see also Frankfurter 1924, 1007).
The brief concludes: "Our constitutional system enshrines the fundamental principles of separation of powers and checks and balances in order to preserve fairness and freedom for all Americans and all communities that make up the diverse fabric of our nation.
Cirit also laid emphasis on the separation of powers which is frequently being discussed in the country in recent days.
Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity, and qualitatively different.
000 European lawyers sees the process as an attack against the principles of separation of powers and the rule of law
The fundamental cause of the fiscal crisis lies in the Founding Fathers' belief in the doctrine of the separation of powers, which has always been philosophically controversial.
8) By stringently interpreting the previously ambiguous first step of Wilkie but nevertheless preserving the Bivens remedy for use in cases where no alternative relief exists, the Court largely validated deep-seated separation of powers concerns expressed in prior precedent while simultaneously making a pragmatic effort to uphold Chief Justice Marshall's belief that a right must always entail a remedy.
Learmonth challenged the constitutionality of the damages cap under the Mississippi Constitution as violations of her right to a jury trial and Mississippi's separation of powers.

Full browser ?