separation of powers


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Related to separation of powers: Division of powers

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 ?
* "[T]he Act as a whole jettisons traditional adherence to constitutional doctrines of separation of powers and a unitary executive...." (206)
Table 4 reports the parameter estimates for county governments broken down by elected (first and second columns) versus professional (third and fourth columns) administrators and separation of powers (fifth and sixth columns) versus unified (seventh and eighth columns) governments.
However, in practice, and due to lack of enough Constitutional provisions for its realization, South Sudan badly falls short on upholding this fundamental principle of separation of powers.
Zug, who thinks that separation of powers and federalism are embedded in the Constitution, I would suggest that those structural features no longer establish meaningful limits on the power of the central government.
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.
incomplete and weak character of separation of powers that doesn't
This tension mirrors the tension of collective (democratic) and individual (rule of law based) self-determination, which is unraveled by the separation of powers doctrine.
In the second section of the article, I argue that the Court's refusal to advise Washington highlights the political considerations that prompted it to suspend judicial--executive cooperation and thus reveals an emerging recognition on the part of John Jay that the efficient operation of the federal government required, in addition to the institutional separation of powers, a political separation of the executive branch from the judiciary.
() An absolute separation of powers exists within every democratic system.
Cirit also laid emphasis on the separation of powers which is frequently being discussed in the country in recent days.
This Article will address several issues raised by Missouri's unusual juvenile court structure, arguing that the structure violates the Missouri Constitution's separation of powers clauses by placing prosecutorial discretion within the judicial branch.
(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.

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