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Separation of powers

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(Redirected from Checks and balances)

Separation of powers is the idea that the powers of a sovereign government should be split between two or more strongly independent entities, preventing any one person or group from gaining too much power.

The concept of the separation of powers finds its first ancestry in Aristotle, with refinements in the 17th and 18th centuries by, among others, James Harrington and John Locke. The most important work however, is that of Montesquieu. Montesquieu's writings on and criticism of the French monarchy at the time led him to come up with the concept of the separation of powers, invoked by many constitutional writers since, and still in use today. His theories were based on what he saw as the positive elements of the British constitutional structure and how he thought it could be improved. The branches named by Montesquieu are:

Hence his term trias politica.

Contents

Checks and balances

The phrase "checks and balances" was also coined by Montesquieu. In a system of government with competing sovereigns (such as a multi-branch government or a federal system), "checks" refers to the ability, right, and responsibility of each power to monitor the activities of the other(s); "balances" refers to the ability of each entity to use its authority to limit the powers of the others, whether in general scope or in particular cases.

Keeping each independent entity within its proscribed powers can be a delicate process. Public support, tradition, and well-balanced tactical positions do help maintain such systems.

The three-branch system

Case study: The United States

Main article: Separation of powers under the United States Constitution

Famously, the framers of the United States Constitution are said to have taken the best of many concepts including the then-new concept of the separation of powers in drafting the constitution. The concept is also prominent in the state governments of the United States; as colonies of Britain, the founding fathers felt that the American states had suffered an abuse of the broad power of the monarchy. The British crown could both create laws and enforce them according to its own whims. As a remedy, the American Constitution limits the powers of the federal government through several means, but in particular by dividing up the power of the government among three competing branches of government. Each branch checks the actions of the others and balances their powers in some way. The following table describes the various "checks and balances" in detail.

Branch Constitutional Powers Executive counterbalance Legislative counterbalance Judicial counterbalance
Executive
  • Operational command of government services and contracts
  • Sole power to wage war (operational command of the military)
  • Responsibility for negotiating treaties
  • Power to appoint judges, diplomats, cabinet, and department heads
  • Police powers of arrest, detainment, and search
  • Prosecutes crimes
  • Collects taxes
  • Civilian and military chains of command constrain low-level executive officials to obey the policies of high-level officials.
  • Extensive bureaucracy limits ability of executive to make extensive changes in operational practices.
  • Power to determine what laws exist
  • Power to write laws to constrain the internal operation of government
  • Power to write laws limiting searches, arrests, and detentions
  • Power to make laws concerning what regulations may be declared by the executive
  • Sole power to declare war
  • Responsibility for ratifying treaties (Senate)
  • Responsibility for confirming executive appointments (Senate)
  • Power to set the budget of the executive
  • Power to impeach and remove executive officers (two-thirds majority)
  • Power to set limits
  • Acts as a neutral mediator when the executive brings criminal or civil enforcement actions, and has the power to stop inappropriate enforcement
  • Issues warrants for searches and arrests
  • May declare actions of the executive to be illegal and/or unconstitutional
  • Determines which laws apply to any given case
Legislative
  • Power to write laws
  • Power to enact taxes, authorize borrowing, and set the budget
  • Sole power to declare war
  • Various other powers of the federal government
  • Subpoena (investigative) power
  • May veto laws (but this may be overridden by a two-thirds majority in both houses)
  • May refuse to enforce certain laws
  • May refuse to spend money allocated for certain purposes
  • Sole power to wage war (operational command of the military)
  • Responsibility for making declarations (for example, declaring a state of emergency) and promulgating lawful regulations and executive orders
  • Executive privilege (refusal to submit to legislative subpoena)
  • Use of the bully pulpit to propose and advocate for laws
  • Each house is responsible for policing its own members.
  • Powers internal to the legislature are split between its two houses, the Senate and the House of Representatives. Only the House may originate spending bills. Only the House may impeach the President, but only the Senate may remove him or her from office. Only the Senate approves treaties and nominees.
  • Each house can prevent the other from passing any law.
  • May declare laws unconstitutional and unenforceable
  • Determines which laws apply to any given case
Judicial
  • Sole power to interpret the law and apply it to particular disputes
  • Power to determine the disposition of prisoners
  • Appointed for life
  • Power to compel testimony and the production of documents
  • Responsibility to appoint judges
  • Power to grant pardons
  • Sole power to pass Constitutional amendments (by two-thirds majority and with the consent of three-quarters of the states)
  • Power to determine the size and structure of the courts
  • Power to determine the budgets of the courts
  • Responsibility for confirming judicial nominees
  • Power to impeach and remove judges
  • Power to determine courts' jurisdiction (except Supreme Court's original jurisdiction)
  • The appeals process enforces uniform policies in a top-down fashion, but gives discretion in individual cases to low-level judges (The amount of discretion depends upon the standard of review, determined by the type of case being reviewed.)
  • May only rule in cases of an actual dispute brought between actual petitioners
  • Polices its own members

Maintaining balance

The independence of the executive and legislative branches is partly maintained by the fact that they are separately elected, and are held directly accountable to the public. There are also judicial prohibitions against certain types of interference in each others' affairs. (See "separation of powers" cases in the List of United States Supreme Court cases.) Judicial independence is maintained by life appointments, with voluntary retirement, and a high threshold for removal by the legislature.

The legal mechanisms constraining the powers of the three branches depend a great deal on the popular sentiment of the people of the United States. Popular support establishes legitimacy, and makes possible the physical implementation of legal authority. National crises (such as the Civil War, the Great Depression, pre-Pearl Harbor World War II, the Vietnam War) have been the times at which the principle of separation of powers has been most endangered, through official "misbehavior" or through the willingness of the public to sacrifice such principles if more pressing problems are solved. In the present day, the American state is remarkably stable, and all three branches have largely enjoyed their sovereign powers continuously since the founding of the republic.

The system of checks and balancing is also self-reinforcing. Potential abuse of power is deterred and the legitimacy and sustainability of any power grab is undermined by the ability of the other two branches to take corrective action. This is intended to reduce opportunities for tyranny and to increase the general stability of the government.

However, as James Madison wrote in Federalist 51 regarding the ability of each branch to defend itself from actions by the others, "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates." Bicameralism was, in part, intended to reduce the relative power of the legislature, by turning it against itself, by having "different modes of election and different principles of action." (This is one of the arguments against the popular election of Senators, which was instituted by the Seventeenth Amendment.) But when the legislature is unified, it wields dominant, unbalanced, power over the other branches.

The words "checks" and "balances" never actually appear together in the Constitution or the Federalist Papers, except once, in Federalist 9, where Alexander Hamilton was referring to the balancing features of the proposed bicameral system.

Fourth branch: Independent executive agencies

The federal executive is a very large bureaucracy, and due to civil service rules, most mid- and low-level employees do not change when a new person becomes President. (New high-level officials are usually appointed and must be confirmed by the Senate.) Moreover, semi-independent agencies (such as the Federal Reserve or the Federal Communications Commission) may be created by the legislature within the executive, which exercise legally defined regulatory powers. High-level regulators are appointed by the President and confirmed by the legislature, and must follow the law and perhaps certain lawful executive orders. But they often sit for long, fixed terms and enjoy reasonable independence from other policy makers. Because of its importance to modern governance, the regulatory bureaucracy of the executive is sometimes referred to as a "fourth" branch of government.

Fourth branch: The press

The press has also been described as a "fourth power" because of its considerable influence over public opinion (which it wields by widely distributing facts and opinions about the various branches of government). Public opinion in turn affects the outcome of elections. The press is also sometimes referred to as the Fourth Estate, a term of historical French origin, which is not related to the modern three-branch system of government. The First Amendment to the United States Constitution explicitly guarantees freedom of the press, a principle which was later extended to state and local governments, in addition to the federal government.

State and local governments

The American states mirror the executive/legislative/judicial split of the federal government. Major cities tend to do so as well, but in general, the arrangements for local and regional governments vary widely. Because the judicial branch is often a part of a state or county government, the geographic jurisdiction of local judges is often not coterminous with municipal boundaries.

In many American states and local governments, executive authority and law enforcement authority are separated by allowing citizens to directly elect public prosecutors (district attorneys and state attorneys-general). In some states, judges are also directly elected.

Many localities also separate special powers from their executive and legislative branches, through the direct election of police chiefs, school boards, transit agency boards, park commissioners, insurance commissioners, and the like.

Juries (groups of randomly selected citizens) also have an important role in the check-and-balance system. They have the sole authority to determine the facts in most criminal and civil cases, acting as a powerful buffer against arbitrary enforcement by the executive and judicial branches. In many jurisdictions they are also used to determine whether or not a trial is warranted, and in some places Grand Juries have independent investigative powers with regard to government operations.

Three-branch systems around the world

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Parliamentary systems

The United States uses a presidential system of government, but around the world, a more common system is the parliamentary system. In parliamentary democracies, the executive branch is dependent or is in some sense part of the legislature.

Case study: United Kingdom

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Parliamentary sovereignty is the concept in British constitutional law that a parliament has ultimate authority over all affairs of government, including the monarch and the courts. In theory, this seems to be in direct opposition to the concept of separation of powers. In the British system, however, there is a considerable amount of de facto independence among agents exercising various functions, and Parliament is limited by various legal instruments, international treaties and constitutional conventions.

The Crown has distinct functions in its different spheres. Curiosities - such as the Lord Chancellor having an executive, legislative, and judicial role; and the House of Lords being a legislative chamber, but including some senior judges - are in the process of reform, but have been defended on the grounds that they discourage judges from making new law by judicial rather than legislative means.

Taiwan: Five branches

Some countries take the doctrine further than the three-branch system. The government of the Republic of China, for example, has five branches: the Executive Yuan, Legislative Yuan, Judicial Yuan, Control Yuan, and Examination Yuan. (Some European countries have rough analogues to the Control Yuan in the forms of ombudsmen, separate from the executive and the legislature.)

The press around the world

Main articles: Freedom of the press, public broadcasting

Media freedom is generally considered to be a core supporting mechanism for democratic governments, and it is found in all strong democracies, regardless of the organizational principle of the "branches" of government.

Many governments financially support public broadcasting in one way or another, but in strong democracies, even these media outlets enjoy strong editorial independence from the government.

An independent press acts as a powerful check against all forms of government, because it provides information about its activities to the public.

Related restraint-of-power concepts

  • Federalism - (also known as vertical separation of powers) Preventing abuse by dividing governing powers, the separation is usually between municipal, provincial and national governments. See also subsidiarity.
  • Rule of law - Prevents arbitrary exercise of executive power, preserves general and minority rights, and promotes stability and predictability.
  • Democracy and civil society - Attempts to constrain elected branches of government to act in the public interest, not in self-interest.
  • Separation of church and state or Lacit - Ensures freedom of religion by preventing government interference in its practice. Also constrains the power of government by maintaining freedom of conscience and belief.

See also

External links

fr:Sparation des pouvoirs he:הפרדת רשויות is:rskipting rkisvaldsins nl:Scheiding der machten ja:権力分立 no:Maktfordelingsprinsippet pl:Trójpodział władzy pt:Teoria da separao dos poderes fi:Vallan kolmijako-oppi sv:Maktdelningsprincipen zh:三权分立

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