Separation of Power (Check and Balances)

Separation of powers is a political doctrine originating in the writings of Charles de Secondat,

Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional
government with three separate branches, each of which would have defined abilities to check
the powers of the others. This philosophy heavily influenced the writing of the United States
Constitution, according to which the Legislative, Executive, and Judicial branches of the United
States government are kept distinct in order to prevent abuse of power. This United States
form of separation of powers is associated with a system of checks and balances.

During the Age of Enlightenment, philosophers such as Montesquieu advocated the principle in
their writings, whereas others, such as Thomas Hobbes, strongly opposed it. Montesquieu was
one of the foremost supporters of separating the legislature, the executive, and the judiciary.
His writings considerably influenced the opinions of the framers of the United States
Constitution.

Strict separation of powers did not operate in the United Kingdom, the political structure of
which served in most instances as a model for the government created by the U.S. Constitution.

Some U.S. states did not observe a strict separation of powers in the 18th century. In New
Jersey, the Governor also functioned as a member of the state's highest court and as the
presiding officer of one house of the New Jersey Legislature. The President of Delaware was a
member of the Court of Appeals; the presiding officers of the two houses of the state
legislature also served in the executive department as Vice Presidents. In both Delaware and
Pennsylvania, members of the executive council served at the same time as judges. On the
other hand, many southern states explicitly required separation of powers. Maryland, Virginia,
North Carolina and Georgia all kept the branches of government "separate and distinct."

Legislative

a. Writes and enacts laws

b. Enacts taxes, authorizes borrowing, and sets the budget
c. Has sole power to declare war
d. May start investigations, especially against the President
e. The Senate confirms presidential appointments of federal judges, executive department
heads, ambassadors, and many other officers, subject to confirmation by the Senate
f. The Senate ratifies treaties
g. The House of Representatives may impeach, and the Senate may remove, executive and
judicial officers
h. Creates federal courts except for the Supreme Court, and sets the number of justices on
the Supreme Court
 i. May override presidential vetoes

Executive

a. May veto laws

b. Vice president presides over the Senate
c. Wages war at the direction of Congress
d. Makes decrees or declarations (for example, declaring a state of emergency) and
promulgates lawful regulations and executive orders
e. Influences other branches of its agenda with the State of the Union address.
f. Appoints federal judges, executive department heads, ambassadors, and various other
officers
g. Has power to grant pardons to convicted persons
h. Executes and enforces orders of the court through federal law enforcement.

Judicial

a. Determines which laws Congress intended to apply to any given case

b. Determines whether a law is unconstitutional. (The power of judicial review is not
expressly granted in the Constitution, but was held by the judiciary to be implicit in the
constitutional structure in Marbury v. Madison (1803).)
c. Determines how Congress meant the law to apply to disputes
d. Determines how a law acts to determine the disposition of prisoners
e. Determines how a law acts to compel testimony and the production of evidence
f. Determines how laws should be interpreted to assure uniform policies in a top-down
fashion via the appeals process, but gives discretion in individual cases to low-level
judges. (The amount of discretion depends upon the standard of review, determined by
the type of case in question.)
g. Polices its own members

The system of checks and balances makes it so that no one branch of government has more
power than another and cannot overthrow another. It creates a balance of power that is
necessary for a government to function, if it is to function well. This, in most situations, makes it
so that each branch is held to a certain standard of conduct. If a branch of the government
thinks that what another branch is doing is unconstitutional, they can “call them out” so to say.
Each branch is able to look at the other branches wrong doing and change it to meet the needs
of the people whom they serve. Humans as a whole have a history of abusing positions of
power but the system of checks and balances makes it so much more difficult to do so. Also the
fact that there is more than one person running each branch gives room for debate and
discussion before decisions are made within a single branch. Even so, some laws have been
made and then retracted because of the fact that they were an abuse of the power given to
that particular branch. The people that created these laws had been serving a selfish agenda
when forming these laws instead of looking out for the welfare of those people that they were
supposed to be protecting by making certain laws. While this is a horrible scenario, it does
happen. That does not mean that it cannot be fixed though. Indeed it can be, by another branch
of government stepping up to right the wrongs that had been done.
Checks and Balances in Action
The system of checks and balances has been tested numerous times throughout the centuries
since the Constitution was ratified.
In particular, the power of the executive branch has expanded greatly since the 19th century,
disrupting the initial balance intended by the framers. Presidential vetoes—and congressional
overrides of those vetoes—tend to fuel controversy, as do congressional rejections of
presidential appointments and judicial rulings against legislative or executive actions. The
increasing use of executive orders (official directives issued by the president to federal agencies
without going through Congress) is another examples of the increasing power of the executive
branch. Executive orders are not directly provided for in the U.S. Constitution, but rather
implied by Article II, which states that the president “shall take Care that the Laws be faithfully
executed.” Executive orders can only push through policy changes; they cannot create new laws
or appropriate funds from the United States treasury.
Overall, the system of checks and balances has functioned as it was intended, ensuring that the
three branches operate in balance with one another.
Roosevelt and the Supreme Court
The checks and balances system withstood one of its greatest challenges in 1937, thanks to an
audacious attempt by Franklin D. Roosevelt to pack the Supreme Court with liberal justices.
After winning reelection to his second term in office by a huge margin in 1936, FDR nonetheless
faced the possibility that judicial review would undo many of his major policy achievements.
From 1935-36, a conservative majority on the Court struck down more significant acts of
Congress than any other time in U.S. history, including a key piece of the National Recovery
Administration, the centerpiece of FDR’s New Deal.
In February 1937, Roosevelt asked Congress to empower him to appoint an additional justice
for any member of the Court over 70 years of age who did not retire, a move that could expand
the Court to as many as 15 justices.
Roosevelt’s proposal provoked the greatest battle to date among the three branches of
government, and a number of Supreme Court justices considered resigning en masse in protest
if the plan went through.
In the end, Chief Justice Charles Evans Hughes wrote an influential open letter to the Senate
against the proposal; in addition, one older justice resigned, allowing FDR to replace him and
shift the balance on the Court. The nation had narrowly averted a constitutional crisis, with the
system of checks and balances left shaken but intact.

The War Powers Act and Presidential Veto

The United States Congress passed the War Powers Act on November 7, 1973, overriding an
earlier veto by President Richard M. Nixon, who called it an “unconstitutional and dangerous”
check on his duties as commander-in-chief of the military. The War Powers Act, created in the
wake of the Korean War and during the controversial Vietnam War, stipulates that the
president has to consult with Congress when deploying American troops. If, after 60 days, the
legislature does not authorize the use of U.S. forces or provide a declaration of war, the soldiers
must be sent home.
The War Powers Act was put forth by the legislature to check the mounting war powers
exercised by the White House. After all, President Harry S. Truman had committed U.S. troops
to the Korean War as part of a United Nations “police action.” Presidents Kennedy, Johnson and
Nixon each escalated the undeclared conflict during the Vietnam War.
Controversy over the War Powers Act continued after its passage. President Ronald Reagan
deployed military personnel to El Salvador in 1981 without consulting or submitting a report to
Congress. President Bill Clinton continued a bombing campaign in Kosovo beyond the 60-day
time in 1999. And in 2011, President Barack Obama initiated a military action in Libya without
congressional authorization. In 1995, the U.S. House of Representatives voted on an
amendment that would have repealed many of the Act’s components. It was narrowly
defeated.

State of Emergency
The first state of emergency was declared by President Harry Truman on December 16, 1950
during the Korean War. Congress did not pass The National Emergencies Act until 1976,
formally granting congress checks on the power of the president to declare National
Emergencies. Created in the wake of the Watergate scandal, the National Emergencies Act
included several limits on presidential power, including having states of emergency lapse after a
year unless they are renewed.
Presidents have declared almost 60 national emergencies since 1976, and can claim emergency
powers over everything from land use and the military to public health. They can only be
stopped if both houses of the U.S. government vote to veto it or if the matter is brought to the
courts.
Recent declarations include President Donald Trump’s February 15, 2019 State of Emergency to
obtain funding for a border wall with Mexico, in which he wrote: “The current situation at the
southern border presents a border security and humanitarian crisis that threatens core national
security interests and constitutes a national emergency.”