separation of powers

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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.


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.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

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.

Collins Dictionary of Law © W.J. Stewart, 2006
References in periodicals archive ?
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."
He added that independence of judiciary cannot be invoked in a manner that undermined importance of separation of power as both were part of basic structure of the Constitution.
Which of the following statements about separation of powers is not true?
Part III will argue that the juvenile officer's prosecutorial discretion violates the separation of powers required by the Missouri Constitution and informed by the U.S.
The Court's decision in Minneci is neither radical nor unexpected, and instead quietly validates a longstanding reluctance to imply causes of action for damages in the face of separation of powers concerns.
Sensitivity to separation of powers is especially vital for assessing claims about the preemptive effect of executive enforcement policies.
Finally, under formalism, "[o]verlap is permitted only when constitutionally prescribed." (53) Professor John Manning observes that "[f]ormalist theory presupposes that the constitutional separation of powers establishes readily ascertainable and enforceable rules of separation." (54)
of Colorado Law School) present the third edition of their text for students of law and political science on the application of law to separation of powers issues between Congress, the Presidency, and the Judiciary in the United States.
The initiative jumpled over the calls of the protesters in Sana'a and the demonstrators in Aden, thus featuring the idea of the separation of powers which should have been adopted since the first years of unity, if not since the revolution of Abdullah al-Sallal.
It referred to a Security Council statement of December 22, which recognised the separation of powers under the Constitution and appeal to the relevant stakeholders to continue to ensure respect for those distinct institutions.
Birden said the attempt to change the constitution of HSYK and the Constitutional Court was against the separation of powers, and would change the jural structure of the state.
Although scholars have long criticized the standing doctrine for its malleability, its incoherence, and its inconsistent application, few have considered whether this chaos is related to the Court's insistence that standing be used as a tool to maintain separation of powers. (1) Most articles on standing, at least those written in the last thirty years, do not question whether standing should be freighted with separation of powers principles, but whether the standing doctrine, as applied in a given case, is consistent with those principles.

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