Separation of Powers: The Role of an Independent Judiciary in Sustaining our Democracy

Part I: What Is Separation of Powers?

What do we mean by separation of powers? At the simplest level, it is the idea that a government functions best when its powers are not concentrated in a single authority but are divided among different groups or branches. The United States was the first nation that used a written constitution to formally adopt separation of powers as the framework for its government.

Development of the Concept of Separation of Powers

The idea of separation of powers developed during the period known as the European Enlightenment. The Enlightenment began in the seventeenth century and lasted until shortly before the beginning of the American Revolution. Enlightenment thinkers identified three main powers that were inherent in government. These include: Legislative power: the power to make law. Executive power: the power to enforce law. Judicial power: the power to interpret the law.

The doctrine of the separation of powers was adopted . . . not to promote efficiency but to preclude the exercise of arbitrary power. -Justice Louis Brandeis1, Myers v. US 1926

Enlightenment theories of separation of powers warned against the concentration of all government powers in the hands of a single individual or authority. They were heavily influenced by the example of England. Over the course of the seventeenth century, England had forged a political system that divided government power among three different authorities. Parliament held legislative power. Parliament was made up of two houses the House of Commons and the House of Lords. Members of the House of Commons were elected. Members of the House of Lords mostly inherited their positions. Both houses deliberated on proposed laws. A monarch (king or queen), who inherited the throne for life, held executive power. A series of agreements between Parliament and the monarch had established Parliaments supremacy, or control, over the monarch. By the early eighteenth century, the monarchs power was mostly limited to enforcing laws passed by the Parliament. A judiciary held judicial power. Up through the seventeenth century, judges in England had served at the pleasure of the monarch. The monarch had been able to dismiss judges at will. But in 1710, the monarch agreed to a request by Parliament to guarantee judicial independence. The monarch agreed that judges will hold their positions during good behavior. He also agreed that judges salaries could not be diminished while they were in office. No judge could be dismissed unless both houses of Parliament approved.

Part II: What Is Separation of Powers and the U.S. Constitution

The United States Constitution limits the power of the federal government through several means, particularly by separating power between three competing branches. The Constitution does not, however, contain a specific provision explicitly declaring the powers of the three branches be separate. Separation of powers is the concept that a government functions best when its powers are not concentrated in a single authority, but are divided among different branches. The United States was the first nation that used a written constitution to formally adopt separation of powers as the framework for its government. The Maryland Constitution mirrors the legislative/executive/judicial split of the United States Constitution. The separation of powers is qualified by the doctrine of checks and balances within the government and between the three branches; the United States Constitution, a living document, created and continues to nurture this perfect balancing act as a means to prevent the concentration and abuse of power.

Constitutional Powers: Separate And Equal

The framers of the United States Constitution identified three competing divisions or branches of government and the powers of each of these: Legislative power the power to make law Executive power the power to enforce law Judicial power the power to interpret law In the first three articles of the Constitution, the framers defined the three branches of government that continue to share power in the United States government today. The term checks refers to the ability, right and responsibility of each branch to monitor the activities of the others; balances refers to the ability of each branch to use its constitutional authority to limit or restrain the power of the others.

Legislative Power: Congress

Article I of the United States Constitution places the sole power to legislate in the United States Congress. Congress is bicameral, meaning it is composed of two houses the House of Representatives and the Senate. Currently, there are 435 members of the House of Representatives (determined by population) and 100 Senators (2 for each state). Both houses must agree upon a bill for it to become law. The Constitution gives Congress power of the United States budget, including powers to raise taxes, borrow and spend money, declare war and raise and support military forces. Congress also has the power to regulate immigration, the mail, patents and copyrights, and commerce between the states and the federal government and other countries. Finally, Congress has the power to establish federal courts below the United States Supreme Court. Most familiar, is Congresss power to pass laws that are necessary and proper to give effect to its powers. Congresss power is limited in various ways as a part of the Constitutional doctrine of checks and balances. The President is able to check Congresss power by exercising the presidential veto. If the President vetoes a bill, that bill will not become law unless two-thirds of the members of both the House and the Senate agree to override the veto. The Constitution also created an independent judiciary with the power to hear all cases and controversies arising under the constitution. The judiciary has used this power to declare laws enacted by Congress unconstitutional.

Executive Power: The President

The powers of the executive branch are defined in Article II of the United States Constitution. Executive power is vested in the President. The principal responsibility of the President is to take care that the laws be faithfully executed. The executive powers include oversight of the federal agencies that implement laws passed by Congress. The President is Commander in Chief of the nations armed forces. The President has the power, subject to the advice and consent of the Senate, to make treaties, nominate judges to the judiciary, and appoint officers of the government. The President also has the power to pardon individuals convicted of federal crimes. Checks and balances on the executive power include several provisions that give Congress and the judiciary oversight of executive actions. The House of Representatives, by simple majority, has the power to indict the President on charges of impeachment; if indicted, the Senate tries and can remove the President from office if convicted by a two-thirds majority. The Senate has the power to reject treaties negotiated by the President and to reject presidential nominated to the federal judiciary and other government offices. Finally, the judiciary has the power to declare executive actions unconstitutional if those actions are challenged in court.

The chief magistrate derives all his authority from the people. -Abraham Lincoln, First Inaugural Address, 1861

Judicial Power: The Courts

Article III of the Constitution establishes the Supreme Court of the United States and such inferior courts as the Congress may from time to time ordain and establish. Today, those inferior courts include the United States District Courts, which are located throughout the United States and where most federal cases are tried, and the Circuit Courts of Appeal, which review the decisions of the District Courts. The Supreme Court is the court of last resort within the federal judiciary on questions of federal law and the Constitution. The Constitution protects the federal judiciarys independence from the other two branches by providing that federal judges are secure in their positions and are not subject to removal during good behavior, thus they serve for life. The Constitution also give the judiciary the power to hear all cases and controversies arising under the Constitution, federal law, treaties with other nations, and other specialized cases, such as controversies between two or more states. Both Congress and the President have powers that serve to check and balance the power of the judiciary. One limitation is that Congress has control over the judiciarys overall budget. Congress can also act to amend the Constitution if it disagrees with the Supreme Courts interpretation of the document. Constitutional amendments are difficult and the process mandates approval by two-thirds majority of both houses of Congress and the approval of three-fourths of the states. Finally, Congress has the power to impeach and try federal judges for misconduct in office. The Presidents power to nominate all federal judges gives the executive branch control over the individuals named to serve in the courts. This power is shared by the Senate via the Constitutional right of advice and consent in the nomination process. A majority of the Senate must consent to the Presidents judicial nominations. Additional limitations to the judiciarys power include the fact that judges can only decide the cases that are brought to them. They cannot declare a law or government action unconstitutional unless they are asked to do so by an affected party. Moreover, the appellate review process ensures that virtually all decisions of individual judges are subject to review by other judges. Even at the Supreme Court, a justice must convince a majority of his or her colleagues to agree to a decision.

Do you ever have one of those days when everything seems unconstitutional?"

Constitutional Conflicts was created for use by first-year law students at the University of Missouri-K. C.

Part III: Marylands Three Branches of Government: An Introduction

Executive: Governor

The Chief of the Executive Branch of Maryland is the Governor, who is elected to serve for four years. The powers and duties of the Executive Branch are located in Article II of the Maryland Constitution. The Lieutenant Governor of Maryland holds only the duties conferred by the Governor. Generally, the Executive Branch is charges with enforcing or executing the laws. Some law may be created by the Executive Branch, for example Executive Orders and treaties.

It is not by accident, but by design that ours is a government of three independent and co-equal branches, checking and balancing each others power and authority. Such an arrangement places a premium on cooperation and collaborationonly when all work together can that natural tension be directed to achieving the greater good. -Chief Judge Robert M. Bell State of the Judiciary Address, 2005.

Legislative: Maryland Legislature

Maryland has a bicameral system consisting of the Senate and the House of Delegates. The powers and duties of the Legislative Branch are located in Article III of the Maryland Constitution. Currently there are 47 Senators and 141 Delegates that serve in the General Assembly. Each of Marylands 47 legislative districts is represented by one Senator and three Delegates.

The General Assembly meets in Annapolis every January and serves for 90 consecutive days. The General Assembly makes laws, called statutes.

Judicial: The Courts

The powers and duties of Marylands Judiciary Branch are located in Article IV of the Maryland Constitution. The role of the Judicial Branch is to interpret the law. Marylands Judiciary Branch is comprised four court levels: two trial courts and two appellate courts. The function of a trial court is to consider evidence in a case and to make judgments based on the facts and underlying law and legal precedent. This may result in the awarding of monetary damages or other relief in a civil case, or the imposition of imprisonment or fines in a criminal case. Appellate courts review a trial courts actions and decisions in given cases and decide whether the trial judge properly followed the law and legal precedent. For jury trials, the appellate court may have to decide whether the jurys decision was proper, given the facts presented and the underlying law in the case. Generally, appellate courts do not decide which party won or lost a trial, nor do they conduct a new trial. Rather, they review the earlier trial and determine whether or not it was fair, according to the law.
Court of Appeal Judges from left to right: Judge Battaglia, Judge Cathell, Judge Raker, Chief Judge Bell, Judge Wilner, Judge Harrell and Judge Greene.

We continue to be devout believers in the doctrine of separation of powers of governmental checks and balances, in practice as well as in theory. We believe that each of the three coordinate branches of government, to successfully accomplish its function, must work in harmony with the others, if the good government envisaged by the Constitutional creation of three branches - the Legislative, the Executive and the Judicial - is to be achieved. - Chief Judge Robert C. Murphy, State of the Judiciary Address, 1975.

The Three Branches

As you know, the United States Constitution defines the three branches of government as:

Executive Legislative Judicial

Maryland Constitution also defines the same three branches. These branches serve as checks and balances for the other branches.

Lets Review
Executive Branch Enforces laws Presents/prepares budget Manages Executive departments & agencies Federal - President State - Governor

Legislative Branch Creates laws Appropriates funds Creates agencies, authorities and other public bodies

Federal United States Congress Senate (100 members) House of Representatives (435 members) State Maryland General Assembly Senate (47 members)

Judicial Branch Interprets and upholds laws Protects individual rights Punishes the guilty

Federal United States Supreme Court United States Circuit Courts United States District Courts

State Maryland Court of Appeals Maryland Court of Special Appeals Maryland Circuit Courts