Separation of Powers/Checks & Balances

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Separation of Powers/Checks and Balances

Separation of powers is the idea that no one branch of government should have too much power.

This is the idea, heavily influenced by the writing of Montesquieu, that no one branch of government should have too much power.
- The Constitution contains several checks and balances to ensure this is the case.
Separation of powers means that the 3 branches of government – legislature, executive, judiciary - are separate but overlapping in practice.

When Barack Obama and Joe Biden became President and Vice President (executive branch) they had to give up their seats in the Senate (legislative branch).

These are powers given to branches of government to check the other branches and the decisions and actions that are made.
Checks and Balances are often exclusive powers of one branch.
This ensures that no branch of the government acts with unchecked power, and prevents too much power lying with one branch - which helps avoid a despotic government.
- For example, the President (executive) appoints justices to the Supreme Court but they have to be approved by the Senate (legislative).

The President can veto a law passed by Congress, but Congress can override the veto with a two-thirds supermajority.
Congress has the power of the purse, can declare war, can override presidential vetoes, and give ‘advice and consent’ on executive appointments.
The executive has the power of the presidential veto and executive orders, and can make executive appointments.
The Supreme Court can declare laws and executive actions unconstitutional through judicial review.

There is a debate as to whether the separation of powers and checks and balances of the US government as outlined in the constitution are effective.

Executive orders can be nullified by Congress, as Congressional laws are more significant than executive orders.
The Supreme Court is able to strike down laws as being unconstitutional, and their ability to do this has not changed or been hindered.
Recent attempts by the executive to change the structure of the Supreme Court in order to help pass legislation have been blocked by Congress.
The President is unable to dismiss judges, and only one justice has ever been impeached.

The President is the de facto leader of their party, and so has power over their legislative agenda.
The process of separation of powers means that legislation is slow to pass, if it passes at all.
- Congressional gridlock is common.
Increased use of executive orders has bypassed the legislative process through Congress, concentrating power in the hands of the President.

The nature of the appointment process for the judicial branch means that separation of powers is not always effective.
- The President can appoint judges for political gain.
- If one party has a majority in the Senate, they can deny a nomination, or refuse to hold confirmation hearings.
- For example, the Senate under majority leader Mitch McConnell in 2016 refused to hold confirmation hearings for President Obama’s nominee Merrick Garland.
- Judges with political views may not adequately check the actions of an executive they support.