Shared Positions and Separation of Power

Shared Powers and Separation of Powers

The American system of government, which has three powerful units, the legislative, the executive, and the judicial, which are relatively autonomous. Though most of the time, this division of power is referred to as a "separation of powers" it is important to realize that there is not a complete division of power between the three governmental units. On the contrary, "ultimate sovereignty (power) in the United States resides with the people." (U.S. Courts). Because the people are the holders of power, there can be no complete separation of powers. However, to prevent any single branch of the government from taking too much power and thereby depriving people of their sovereignty:

The Framers wrote a Constitution with a system of checks and balances. Under a system of checks and balances, power is divided among different branches of government. This system is based upon the idea that each branch will be protective of its own power and, thus, prevent, intrusions upon it from other branches - thereby preventing any one branch of government from becoming too powerful. (U.S. Courts).

Congress fulfills the legislative role, and is the only body that can make federal laws. Moreover, Congress cannot delegate its legislative powers to any other governmental body. However, Congress can delegate some of its lesser powers to other governmental branches. In addition, Congress retains some control over the executive and judicial branches through the power of impeachment. The President fulfills the executive role, and is in charge of executive officers who ensure that the nation's laws are enforced. However, presidential power only extends to executive agencies, not quasi-judicial or legislative agencies. The executive branch exercises some control over the judiciary because it nominates judicial appointees. In addition, the executive branch exercises some control over the legislative branch because of the power of the Presidential veto. The judicial power is given to the Supreme Court and the lower courts. The judicial power is only exercised by constitutional courts; though Congress can establish legislative courts to determine issues of public rights, those courts cannot exercise judicial power.

The three branches are interrelated through a system called checks and balances. In fact, it is important to understand that a true separation of powers requires some oversight by other branches. As James Madison argued in the Federalist Papers, unless the three departments "be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained." (Madison). Therefore, each of the branches is granted some type of control over the other branches. Congress has the power to establish compensation for judges, the President, and for members of Congress, though any changes do not take effect during the term of office of the current members. Congress can impeach members of the executive and the judiciary; the House of Representatives impeaches them and the Senate tries the impeachments. In addition, if no Presidential candidate can obtain a majority in the Electoral College, the House chooses the candidate (however, this is unlikely given America's transfer to a two-party system). The Senate has to consent to many executive appointments. Congress exercises control over the judiciary by establishing the inferior courts and determining their jurisdiction. Furthermore, the Senate has to consent to the President's judicial appointments.

The Executive's role in the other branches is more apparent than the other roles. First, the Vice President, who is a member of the Executive branch, is also the president of the Senate. The President has the power to appoint federal judges. In addition, the President has the power to veto legislation (though Congress may override presidential vetoes). The President can also override judicial decisions, by issuing pardons or reprieves.

While the Executive and Legislative branches interact with each other in a direct manner, the Judicial branch interacts with them in a more detached manner. Furthermore, they do so by judicial review, which the Supreme Court created in the landmark case of Marbury v. Madison, 5 U.S. 137 (1803). The Constitution does not explicitly grant the power of judicial review to any of the Federal courts. Furthermore, Congress may limit the power of the federal courts through their power to designate jurisdiction. The Judiciary also exercises power over the Executive. The Chief Justice presides over presidential impeachments. Although the judiciary has traditionally been considered the weakest branch, through judicial activism, it has helped shape the nation's legislation and has impacted how the Executive branch functions.

In addition to guarding against one branch encroaching upon the powers of another, the federal government has also taken steps to protect against one single person taking too much power in the government. 18 U.S.C.S. 201(b)(2) provides that:

Whoever - being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for: (a) being influenced in the performance of any official act; (B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or - being induced to do or omit to do any act in violation of the official duty of such official or person. 18 U.S.C.S. 201(b)(2).

In order to understand how the three branches balance their powers, it is important to understand the separation of powers and the system of checks and balances. All three branches have engaged in a struggle for power. The Supreme Court seized a tremendous amount of power for itself when is established the doctrine of judicial review. In Marbury v. Madison, one of the issues presented was whether Congress had the right to alter the jurisdiction of the Supreme Court. However, the broader issue was how the Supreme Court would treat a conflict between the Constitution and an act of Congress.

The Court determined that the Supreme Court could void acts of Congress. In fact, it held that:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply. Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitution. 5 U.S. 137, 177-178.

For example, in the Pentagon Papers case, New York Times v. United States, 403 U.S. 713 (1971), the Supreme Court determined that the Executive branch had violated the First Amendment of the Constitution by trying to restrain the publication of certain papers:

In 1971, the New York Times and the Washington Post obtained copies of a classified study stolen from the Department of Defense, History of U.S. Decision-Making Process on Viet Nam Policy, popularly called the Pentagon Papers. After some delay, the newspapers began publishing the documents. The Department of Justice sought injunctions from federal district courts in New York and the District of Columbia against further publication. (Murphy, Fleming, Barber, and Macedo).

Building on its prior cases, the Court determined that, in order to issue prior restraints against First Amendment rights, the government must meet a heavy burden to justify such a restraint. The Court determined that the government had not met that burden.

However, the Supreme Court has also played an important role in expanding the power of the federal government. In McCulloch v. Maryland, 17 U.S. 316 (1819), the Court determined that the Federal government had the power to pass laws if those laws were necessary to further the government's express powers. Therefore, the Court determined that Congress had the implied power to pass laws to implement state action. The Court held that:

The true view of the subject is, that if it be a fit instrument to an authorized purpose, it may be used, not being specially prohibited. Congress is authorized to pass all laws 'necessary and proper' to carry…