Most people don’t exactly enjoy watching the federal branches of government clash. When the U.S. Supreme Court strikes down an executive order, when the president vetoes a bill, or when Congress moves to impeach a federal officer, the conflict can feel tense and even unsettling. But is this conflict truly harmful to our democracy? Is it a flaw in our system based on a separation of powers, or is it proof of America’s political ingenuity?
What we understand as a “separation of powers” is more complex than the uninterrupted autonomy of each branch. In reality, a healthy tension between the legislative, executive, and judicial branches prevents uninhibited power.
Historical Context
The “separation of powers” concept predates the United States. Baron de Montesquieu, an 18th-century French philosopher, coined the term. In his treatise, The Spirit of the Law, Montesquieu wrote about the dangers of a unitary government. He feared that if a single person held the powers of the legislative, executive, and judiciary all at once, “there [could] be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”
Montesquieu and other Enlightenment authors largely inspired the framers of the U.S. Constitution. Fearful that a singular ruler would lead to a tyrannical king like that of Great Britain, the framers divided their new government into three branches: the legislative, the executive, and the judiciary. The first three articles of the Constitution outline the roles of each. The legislative branch would enact laws and appropriate the federal budget — this is Congress. The executive, or the president and his or her cabinet, would implement or “execute” those laws. The judiciary, comprised of the Supreme Court and lower federal courts, would resolve conflicts arising from the first two.
The framers intentionally placed the legislative body as the first branch of government. Its responsibilities, as described in Article I, are also the most comprehensive. The framers made clear that authority did not originate from a single person in the presidency, but from the many people who comprise Congress. Article III, which describes the judicial branch, is the least detailed, granting the judiciary the least amount of power.
But the framers did not stop there. While the separation of powers ensured that each branch maintained its own autonomy, they also recognized a need to keep each branch accountable — to “check” them when asserting undue control over each other or endangering the rights of the “we the people.” Thus, the companion concept of “checks and balances” was formed.
Checks and Balances
Although commonly coupled with the separation of powers, “checks and balances” is a distinct mechanism of the federal system. Whereas the former draws the bounds of each branch’s power, the latter identifies pockets where these bounds overlap. Checks and balances ensure that one branch, in executing its function, does not act without the consent of the others.
Each branch does this in a variety of ways. As the first branch, the legislature is given the most checks. It can investigate executive officers for misconduct. It can confirm or deny federal judges, including those of the Supreme Court. It can refuse to pass a federal budget, leading to a complete government shutdown. It can override a presidential veto to pass a bill. Through a lengthy legal process, it can create constitutional amendments, which the Supreme Court must uphold. Perhaps its most recognizable check: Congress is allowed to impeach and even remove the president from office. But while Congress may be the body with the most power over the other branches, it is also the one with the most obstacles to enforcement. The checks listed above require a majority in both chambers, the House and the Senate, which is quite a difficult hurdle to overcome.
Next, the executive has some checks on the other branches. The president’s signature is required to pass a congressional bill into law. The president can refuse to sign a bill, otherwise known as a “presidential veto.” The president can also call Congress into a special session for urgent issues. The vice president presides over the Senate and, in the event of a 50/50 vote, can act as a tie-breaker. As for checks on the judiciary, the executive branch can nominate federal judges, and pardon or commute federal sentences.
Finally, the judiciary can check the executive and legislative branches. The courts have the power of judicial review, which is the ability to declare laws unconstitutional. They can also resolve a dispute when the president exercises an authority that belongs to Congress, after a case is brought before the court challenging the president’s action. The Supreme Court’s chief justice presides over impeachment trials. The nature of the judiciary makes it heavily reliant on the other branches. The courts’ job is to resolve constitutional dilemmas; without action from the executive or legislature, there is nothing to rule on.
Conclusion
The separation of powers is key to a functional U.S. government. The existence of three distinct government entities, each with its own domain and function, provides our system with the order it needs to work effectively. Likewise, checks and balances safeguard us from abuses of power. Allowing these entities to interact with one another —- to cooperate in furtherance of shared goals or to correct errors in their judgments — protects our system from political corruption and abuse of power.
Alexandria Thomas (Trinity ’26) is an undergraduate assistant for the Bolch Judicial Institute. She is currently studying Political Science with a concentration in American Politics. In the next few years, she hopes to attend law school, where she will expand her knowledge of constitutional law. In her free time, she enjoys reading, painting, and competing in undergraduate mock trial.
Sources
- National Conference of State Legislatures, Separation of Powers: An Overview, https://www.ncsl.org/about-state-legislatures/separation-of-powers-an-overview.
- Constitution Annotated: Separation of Powers, Constitution of the United States: Analysis and Interpretation(Library of Congress), https://constitution.congress.gov/browse/essay/intro.7-2/ALDE_00000031/.
- United States Courts, Court Shorts: Separation of Powers, https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/court-shorts-separation-powers.
- Separation of Powers | Principles of the Constitution, YouTube (iCivics 2018), https://www.youtube.com/watch?v=0bf3CwYCxXw.
- James Madison, The Federalist No. 51, in The Federalist Papers (Yale L. Sch. Avalon Project), https://avalon.law.yale.edu/18th_century/fed51.asp.