Separation of Powers

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Separation of powers refers to a system of government in which its powers are divided between multiple branches, each branch controlling a different aspect of government. In the United States, governmental authority is divided between the executive branch, which is controlled by the President; the legislative branch, which is controlled by Congress; and the judicial branch, which is controlled by the Supreme Court. To explore this concept, consider the following separation of powers definition.

Definition of Separation of Powers

Noun

  1. The doctrine of dividing powers between the executive, legislative, and judicial branches of government
  2. The principle of splitting governmental powers between separate branches of the government, none of which are to infringe upon the powers of the other.

Origin

1748    Baron de Montesquieu, in his treatise The Spirit of the Laws.

What is Separation of Powers

French political philosopher Baron de Montesquieu coined the phrase “separation of powers” in his 1748 treatise The Spirit of the Laws. In his treatise, Montesquieu discussed how political power could be divided up among three separate branches of a legislative body, so as to create a form of government that was not headed up by a single monarch or ruler. The United States government is a separation of powers form of government, and it consists of three individual branches: the executive branch, the legislative branch, and the judicial branch. Each branch is led by one individual or body of individuals, and has its own specific responsibilities.

Branches of the U.S. Government

The three branches of the U.S. government – the executive, legislative, and judicial branches – are ruled over by the President, Congress, and the Supreme Court, respectively. Each of the branches of the U.S. government is assigned its own tasks and responsibilities. This is to prevent an individual ruler from having the power to control every aspect of government. The branches of the U.S. government are outlined in more detail below.

Executive Branch

The executive branch of the U.S. government is headed up by the President of the United States. The executive branch is responsible for, among other things, carrying out the instructions that are given to it by Congress. The executive branch can sign treaties, and appoint members to posts, such as the federal judiciary, and the federal executive departments, in line with the advice and permission it receives from the Senate.

The President is the commander-in-chief of the country’s armed forces, and he may veto any bills passed by Congress. However, his veto can ultimately be overturned by Congress. This is a built-in system of checks and balances.

The executive branch is divided into several positions and departments:

  • President
  • Vice President
  • Executive Office of the President
  • Presidential Cabinet
  • Department of Agriculture
  • Department of Commerce
  • Department of Defense
  • Department of Education
  • Department of Energy
  • Department of Health and Human Services
  • Department of Homeland Security
  • Department of Housing and Urban Development
  • Department of the Interior
  • Department of Justice
  • Department of Labor
  • Department of State
  • Department of Transportation
  • Department of the Treasury
  • Department of Veterans Affairs

Legislative Branch

The legislative branch is the branch of government that is run by Congress. It is made up of the House of Representatives and the Senate. The legislative branch has the power to pass bills, declare war, and ratify treaties. The legislative branch is also solely responsible for carrying out impeachments, and for conducting the trials that take place before impeachments. While the President can veto certain acts of Congress, Congress also has the power to override that veto by obtaining a two-thirds majority vote from both the Senate and the House of Representatives.

The House of Representatives consists of 435 elected members, and those members are divided up among the 50 states based on their respective populations. This means that more populated states are granted more representatives than those with smaller populations. Members of the House of Representatives serve two-year terms, after which they face re-election. To hold a House seat, an individual must be at least 25 years old, and a citizen of the United States, as well as a resident of the state he or she wishes to represent.

The Senate, on the other hand, consists of 100 Senators, with 2 Senators representing each state, regardless of population. Senators used to be chosen by state legislatures, but that changed in 1913, when the 17th Amendment permitted them to be elected by popular vote. Since that time, each Senator is elected for a six-year term by the people of his or her respective state.

Typically, the way Senators’ terms work out, one-third of the Senate is reelected every two years. Senators, like House members, must reside in the state they wish to represent. They must also be at least 30 years old, and they must be citizens of the United States for at least nine years.

Judicial Branch

The Supreme Court is at the head of the judicial branch of the U.S. government. The judicial branch reviews whether or not a law is constitutional, in a process known as “judicial review.” It also determines how Congress meant laws to be interpreted at the time they were written. The judicial branch can force the production of evidence, as well as testimony, by issuing a subpoena.

Article III of the Constitution gives Congress the authority to establish lower courts as well, which is why the federal court system is divided into district courts, which hear cases in their respective jurisdictions. Most of the district courts try federal cases, though there are also 13 appellate courts within the U.S., which they review any of the cases that were appealed at the district court level.

An example of separation of powers at work, is that, while federal judges are appointed by the President (the executive branch), and confirmed by the Senate; they can be impeached by the legislative branch (Congress), which holds sole power to do that. Supreme Court judges do not serve a set term; they instead serve until they retire, die, or are impeached by the Senate. The reason for this is so that they are protected from the election choices of the fickle general public, allowing them to focus on the law, without politics clouding the picture.

Checks and Balances

Checks and balances is a system that was built into the U.S. Constitution, to keep each branch of government in check. It is meant to prevent any one branch from usurping too much power. Each branch of government has a certain amount of control over the other branches, in addition to its individual powers. An example of checks and balances is the President’s authority to veto a law that Congress has passed. Yet, Congress can then override the President’s veto by obtaining a two-thirds vote in both of Congress’ houses: the Senate and the House of Representatives.

Another example is that the Supreme Court can determine that a law that Congress has passed – and that the President has signed – was ultimately unconstitutional. Those members of the Supreme Court who make that decision have been appointed by the President (the executive branch) to make such determinations. However, those appointments first had to be approved by Congress (the legislative branch). Another standard feature of the checks and balances system is that, while Supreme Court judges serve for life, they can be impeached by Congress, if it is deemed they are not acting in the country’s best interests.

Separation of Powers Example Involving the Stolen Valor Act

A perfect example of separation of powers at work can be found in the case of Xavier Alvarez. Having been elected to the Walnut Valley Water District Board of Directors, in Claremont, California, Alvarez stood in his first meeting, and introduced himself a “retired marine” who had “retired in 2001.” He told the other Board members that he had received the Congressional Medal of Honor in 1987, telling the group that he had been “wounded many times by the same guy.” In truth, Alvarez had never received that prestigious medal, nor any medal at all. In fact, he had never been a member of the United States’ Armed Forces.

Because this “theft” of honors or valor was becoming an all-too-common problem, Congress passed legislation called the Stolen Valor Act of 2005, which made lying about having received military decorations and/or medals a criminal act. The Act was signed into law by President George W. Bush on December 20, 2006.

Two months after that meeting, Alvarez was charged with two counts of false representation, in lying about having received that medal, which was determined to have violated the Act. Alvarez’ defense was that the statute violated his right to free speech. The question of whether or not the Act truly did infringe upon Alvarez’s rights under the First Amendment made its way to the U.S. Supreme Court.

Interestingly, the Supreme Court ruled that restrictions placed on the content on one’s speech are almost always considered to infringe on the right to free speech. Defamation of character and legitimate threats may be considered serious concerns requiring that the law take action, but not so with false statements alone. The Court ruled that Congress was too broad in its creation of the Act, and that the Act attempts to limit speech that is, personal feelings aside, harmless. As a result, “offenders” should not be charged criminally for false statements.

Below is a timeline related to this case, which shows why it is a perfect example of separation of powers being exercised by every branch of the United States government:

  • Congress (legislative branch) passed the Stolen Valor Act of 2005, which was intended to be used to punish those who lie about having received high military honors when they did not.
  • However, in 2012 the Supreme Court (judicial branch) ruled that the Stolen Valor Act was unconstitutional, because it infringed upon the accused’s First Amendment right to free speech.
  • Within a month of the Supreme Court’s decision, the President and the Pentagon (executive branch) created a national database containing all of the medal citations that have been issued over the years, so as to verify who has actually has received high military honors and to weed out any false claims.
  • Congress, as a result of this case, has been working to narrow the legislation that they originally intended to carry out when they created the Stolen Valor Act. Specifically, the revamped Stolen Valor Act of 2011 would make it a federal misdemeanor for anyone to profit from making false claims about serving in the military or receiving high military honors. Financial benefits include those related to health care, government-issued contracts, or jobs that are specifically reserved for veterans.

Here it is evident that, while each branch has the authority to act in whatever way it sees fit, it must also depend on the other branches to help get things done. It is only by working together that all three branches can come together to form a fully functional government.

The database created in association with the Valor Act is hosted by the U.S. Department of Defense, and is titled Military Awards for Valor. This database is available to the general public, and can be found at the link above.

Related Legal Terms and Issues

  • Congress – The legislative branch of the United States federal government, composed of the House of Representatives and the Senate.
  • Impeachment – The formal charging of a public official with crimes committed while in office.
  • Treaty – A formal agreement between two or more governments, for peace, alliance, commerce, or other mutually beneficial thing.