Power`s Separation Essay, Research Paper
It has proved true, historically, that there is a natural tendency of
governments to assume as much power as possible. To prevent this from happening
in the United States, the framers of the Constitution divided the functions of
the federal government among three branches: the executive branch, legislature
or the lawmaking branch and the judiciary. These should be separate and enjoy
equal power and independence. This separation of powers is in direct contrast to
the government in Britain. Their Parliament is the single governing unit.
Members of the executive–the Cabinet and the Prime Minister–are members of
Parliament. The highest court of appeal is the House of Lords. The separation of
powers was also in contrast to the government under the Articles of
Confederation. The Articles provided for no separate executive branch. The
president was the presiding officer of the Congress. There was no national court
system at all. The framers of the Constitution decided on a government in which
the three main functions would be held by three separate branches. The Congress
was empowered to make laws. The president was empowered, through the departments
and agencies of the executive branch, to enforce the laws. The president is thus
the head of the bureaucracy–the non-elected officials of government. The
Supreme Court was established as the highest judicial authority. John Adams
referred to this three-part arrangement as a system of checks and balances that
protect the people from authoritarian or arbitrary rule. In addition to
distributing power among the three branches of the federal government, the
Constitution also distributes it among the states and the people. The Tenth
Amendment specifically reserves all "powers not delegated to the United
States" to the "States respectively, or to the people." Within
each state there are many other governmental units. Each local government, from
the smallest village to the largest city, has its necessary powers. There are
taxing bodies, such as school districts, that have the authority they need in
order to operate. Before continuing to mention how the separation of powers is
applied in the United States presidential system, let me briefly explain the
structure of the presidential system. The Presidential System United States
Government The federal government of the United States was created by the
Constitution, which went into operation in 1789 when the first Congress convened
and George Washington took the oath of office as president. The government is
called federal because it was formed by a compact (the Constitution) among 13
political units (the states). These states agreed to give up part of their
independence, or sovereignty, in order to form a central authority and submit
themselves to it. Thus, what was essentially a group of 13 separate countries
under the Articles of Confederation united to form one nation under the
Constitution. When the Declaration of Independence was issued in 1776, it used
the term United States of America. Until the Constitution was adopted and
ratified, however, the 13 states did not really form one nation. They each held
onto so many powers individually, including conducting foreign policy and trade
negotiations, that the Continental Congress could only do what the states
allowed. The Articles were never the law of the land to the extent that the
Constitution is. In essence, the United States as a nation did not come into
existence until the Constitution began to function as the framework of the
government. Once the Constitution was in place, tension between the states and
the federal government did not automatically cease. Many political thinkers
believed that the states were really the supreme authority. According to this
viewpoint, states could nullify acts of the federal government that were
disagreeable to them. One of the strongest proponents of this view was John C.
Calhoun, senator from South Carolina. His chief opponent was Chief Justice John
Marshall. Calhoun’s position, called states’ rights, has persisted to the
present. It was seriously undermined, however, by the American Civil War. Since
that war the federal government has gained much power at the expense of the
states. The best known characteristic of the presidential system is the
separation of powers. The three principal functions of the government are the
formal promulgation of the law, its administration, and its adjudication. These
are established in separate and co-ordinate branches. We call them the
legislative, the executive and the judicial; they are independent of one
another, but are at the same time made interdependent. (The judicial branch
enjoys a considerable degree of independence in all nations subscribing to the
Anglo-American tradition of jurisprudence, regardless of whether they have
adopted the presidential system.) CONGRESS: The Legislation Branch One of the
most difficult debates in the Constitutional Convention of 1787 centred on
representation. The large states desired representation in proportion to
population in the proposed national legislature. This would, of course, have
allowed them to control legislation because they would have had more legislators
than small states. The small states, conversely, wanted equal representation. On
June 11, 1787, delegate Roger Sherman of Connecticut proposed the plan that was
eventually adopted. It called for a bicameral, or two-house, legislature in
which one house has proportional representation and the other equal
representation. Thus the small states were placated by having equal
representation and the large states with proportional representation. After much
wrangling among the delegates, the plan was adopted on July 16. The Congress was
created by Article I, section 1, of the Constitution: "All legislative
powers herein shall be vested in a Congress of the United States, which shall
consist of a Senate and House of Representatives." Chief among the powers
of congress is the power to assess and collect taxes, for it is this authority
that makes running the whole government, including the other two branches,
possible. The power to decide how to spend money lies in both houses, but only
the House of Representatives has the authority to originate bills for raising
revenue. Each house, because it is the judge of the "qualifications of its
own members," may punish its members for misbehaviour. Members can be
expelled by a two-thirds vote. House of Representatives The House of
Representatives was intended by the framers of the Constitution to reflect the
popular will. Its members therefore are directly elected by the people. The
number of representatives from each state is proportional to the size of the
state’s population. No state, however, has less than one representative.
Representation is reapportioned after every census. After the states receive
their quota of seats, the states themselves determine the boundaries of the
congressional districts. In 1964 the Supreme Court ruled that population sizes
within each district must be approximately equal. The special powers of the
House are two: the right to originate revenue bills and the right to begin
impeachment proceedings. Senate The Senate has 100 members, two for each state.
Since 1913, when the 17th Amendment was ratified, senators have been directly
elected by the people. Prior to that year they were elected by state
legislatures. When vacancies occur between elections, state governors appoint
replacements. The Senate has some special powers not accorded to the House. It
approves or disapproves of presidential appointments; it can approve treaties,
by a two-thirds vote; and it is the court for impeachment trials. To become a
senator an individual must be at least 30 years of age, a citizen of the United
States for nine years, and a resident of the state from which elected. The full
term of a senator is six years. The terms of one third of the members expire
every two years. The presiding officer of the Senate is the vice-president of
the United States. It is the only duty for that official prescribed by the
Constitution. In his absence the presiding officer is the president pro tempore,
meaning "for the time being," who is elected by the membership. As in
the House, there is a majority leader and a minority leader. The Senate majority
leader is often a powerful figure in government, especially if the president is
of the other party. The Senate, in its floor debates, has more freedom of action
than does the House. As a rule, debate on a measure continues until every
senator has had a chance to say everything he wishes on it. Freedom of debate is
occasionally abused by a filibuster, a device by which a senator can talk
endlessly to prevent a bill from coming to a vote. Senate rules provide for
stopping a filibuster by the application of cloture, or closing debate, which
requires the support of two thirds of the members present and voting. The
cloture rule was adopted in 1917. EXECUTIVE BRANCH Just as the delegates to the
Constitutional Convention had differences over the nature of Congress, so too
were there sharp disagreements on the nature of the Executive Office. Should
there be one president or three? Should he serve for life or for a limited term?
Was he eligible for re-election? Should he be elected by the people, by the
governors of the states, or by Congress? The outcome of the debates was Article
II of the Constitution, outlining the office of the president. The presidency
would consist of one individual holding office for four years but eligible for
re-election. Because the delegates did not trust the people to elect a president
directly, they established an indirect method. Electors chosen by state
legislatures (and eventually by the voters) voted for candidates for the
presidency. To be eligible for the presidency a person must be a native-born
citizen, 35 years of age, and must have lived in the United States for at least
14 years. Based on the example set by George Washington, successive presidents
did not seek more than a second term until Franklin D. Roosevelt ran for office
and was elected four times, beginning in 1932. The 22nd Amendment, ratified in
1951, limits the term of office for presidents. The Constitution gives many
specific powers to the president. Other powers have accrued to the office
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and through the president’s position as leader of his party. The president is
charged with enforcing all federal laws and with supervising all federal
administrative agencies. In practice these powers are delegated to subordinates.
The president’s principal helpers include the White House staff, specialised
agencies of the Executive Office, and the heads of executive departments and
their agencies and bureau?s. Except for the White House staff, the individuals
in charge of agencies and departments are appointed by the president, subject to
approval by the Senate. The president nominates all officials, administrative or
judicial, who are not civil-service employees. The Constitution gives the
president the power to grant reprieves and pardons to persons convicted of
crimes against the United States. This power is denied only in the case of an
individual convicted on impeachment. The president exercises far-reaching powers
in the conduct of foreign policy. In most cases he acts through the secretary of
state and the Department of State. The president negotiates treaties, mostly
through subordinates. These are subject to confirmation by a two-thirds vote in
the Senate. He nominates ambassadors, ministers, and consuls to represent the
United States abroad. He takes the lead in recognising new regimes or
withholding official recognition. Closely related to his foreign policy
authority is the president’s role as commander in chief of all the armed forces.
He appoints all commissioned officers of the Army, Navy, Air Force, and Marines.
During wartime he may become involved in planning strategy. Proper functioning
of the government depends in great measure on the president’s relations with
Congress. It is his responsibility to keep Congress informed of the need for new
legislation. He must also submit an annual budget for all the government
expenditures. The departments and agencies are required to send Congress
periodic reports of their activities and members of departments and agencies are
often required to testify before committees of Congress on matters of pending
legislation or other issues. In times of war or other national crisis, Congress
usually grants the president emergency powers. These powers include the
authority to issue orders regulating most phases of national life and the war
effort, to organise special agencies of government, and to make appointments
without confirmation. In normal times, as well as during emergencies, Congress
may pass laws establishing a policy but leaving the details to be worked out by
the Executive Office. The president then publishes an executive order that has
the force of law. The only official duty of the vice-president is to preside
over the Senate, though he does not take part in its deliberations. He casts a
deciding vote in case of a tie. In the president’s absence he presides over
meetings of the Cabinet. Originally there were no candidates for this office.
The man receiving the second-largest number of votes for president became
vice-president. In 1801 Thomas Jefferson and Aaron Burr each received 73
electoral votes, and the House of Representatives had to decide between the two
candidates. After 36 ballots Jefferson became president and Burr vice-president.
As the party system developed, separate candidates were nominated for each
office on the same ticket. THE JUDICIARY This is the body charged with enforcing
laws and, in some states, upholding the constitutional rules. This includes the
Supreme Court and State courts. The Constitution is a written document whose
words cannot be changed except by the process of amendment. But the meaning of
the words is not always interpreted in the same way by members of opposing
political parties or by persons engaged in lawsuits over property or human
rights. Thus it has been necessary for someone to interpret it–that is, to
determine what it means in any controversy. This duty is entrusted to the
Supreme Court. It provides that the Constitution and the laws made "in
pursuance thereof, shall be the supreme law of the land." The Supreme Court
therefore has two kinds of duties: one, to decide cases of law; the other, to
decide what the Constitution means. Sometimes people who have been dissatisfied
with decisions made by the Supreme Court have said that the power to determine
the meaning of the Constitution ought to be exercised by Congress; but since a
law inconsistent with the Constitution cannot be a valid law, it must not be
enforced. Only the court before which the enforcement of such a law comes can
easily make the decision. The Separation of Powers In American states, members
of all three branches are commonly elected directly by voters. The federal
government does not have an elected judiciary; judges are appointed and can be
removed only under most unusual circumstances. The interdependence of the three
branches is secured by what is obverse of the separation of powers, namely the
checks and balances system as mentioned earlier. The separation of powers is
important in a political system. Montesquieu truly believed this, he says when
legislative power is united with executive power in a single person or a single
body of magistracy, there is no liberty, because one can fear that the same
monarch or senate that makes tyrannical laws will execute them tyrannically. Nor
is there liberty if the power of judging is not separate from legislative power
and from executive power. If it were joined to legislative power, the power over
the life and liberty of the citizens would be arbitrary, for the judge would be
the legislator. If it were joined to the executive power, the judge could have
the force of an oppressor. The prime concern of Montesquieu was to avoid the
access of political power, which might occur if too much power was concentrated
into the hands of one area of government. But the separation of power in the
United States is incomplete. Here are a few examples of how the separation of
powers in the American political system is incomplete: ¨ The political
system of the USA is, in reality, is dominated by the president, who as the
focus of popular attention can appeal to the public directly in a way that the
other elements of the system cannot. ¨ Congress can pass a bill, but the
President can prevent it from becoming a law by vetoing it. Should the president
veto a bill, it may be enacted over his veto by a two-thirds vote of both
houses. Failure to re-pass in either house kills it. If a bill is not signed or
returned by the president, it becomes law after ten working days. If the
president does not return a bill and Congress has adjourned in the meantime,
however, the bill does not become law. This procedure is called a pocket veto.
Bills introduced in either house are first sent to the committee having
jurisdiction over them. A committee can kill a bill, bury it, or amend it. If
the bill is reported favourably out of committee, it is sent to the floor of the
respective house for debate and passage–with or without amendments. A bill
passed by one house is sent to the other for consideration. There it may be
passed intact, it may be amended and passed, or it may be defeated. If one house
does not accept the version of a bill passed by the other house, the bill is
sent to a conference committee composed of members of both houses. After final
passage the bill is signed by the speaker of the House and the vice-president
(who is the presiding officer of the Senate) and sent to the president for his
signature. If the bill does become law, it is subject to interpretation by the
courts, which decide its actual application to specific cases. The courts may
even declare the law to be unconstitutional, thus setting it aside. However, the
judicial interpretation may, in turn, be overruled if Congress enacts
legislation that overcomes the courts? objections to the earlier law. ¨
Committees of each house are controlled by the political party that has a
majority of members in that house. Appointments to committees are mostly based
on seniority. The ranking, or most senior, member normally becomes chairman. In
addition to its committee and lawmaking activities, Congress also exercises a
general legal control over all government employees. It may also exercise
political control through the Senate’s power of approving presidential
nominations. Congress cannot remove officials from office except by its power of
impeachment. In an impeachment proceeding the House acts as a grand jury,
gathering evidence and securing an indictment. The Senate then becomes the court
in which the case is tried. There has only been one complete presidential
impeachment proceeding in American history–that of Andrew Johnson–and he was
acquitted. A bill of impeachment was voted against Richard M. Nixon, but he
resigned before a Senate trial could begin. ¨ The president can appoint a
judge to a Federal court, but the appointment is subject to approval of the
Senate, and a judge, like the president himself, may be impeached and, if
convicted, removed from office by a procedure involving the two houses of
congress. ¨ If a member of an executive branch fails to perform some act
that a citizen feels is his legal duty, the citizen may ask a court to issue an
order requiring the official to perform his duty. ¨ If congressional
leaders are dissatisfied with the way in which an executive agency is
administered, they may conduct an investigation that may cause the policies of
the agency to be altered, either because of resulting new legislation, or
because of the glaring headlines concerning the agency. An investigation may
also be conducted by a federal grand jury or, in certain circumstances, by a
Federal judge. The checks and balances system is based on the idea that in a
democracy no one person or institution should ever be able to gain absolute
power and control, and the best way to prevent this from happening is to have
each officeholder hold some power over other officeholders. But this is not
complete in the American political system, as we have seen the ability of
different parts of the political system are able to check one another, i.e. the
government can veto a bill from congress, congress can impeach the President.
Therefore I conclude that the separation of powers in the American political
system is incomplete.