Power`s Separation
It has proved true, historically, that
there is a natural tendency of
governments to assume as much power as
possible. To prevent this from happening
in the United States, the framers of
the Constitution divided the functions of
the federal government among three
branches: the executive branch, legislature
or the lawmaking branch and the
judiciary. These should be separate and enjoy
equal power and independence.
This separation of powers is in direct contrast to
the government in Britain.
Their Parliament is the single governing unit.
Members of the
executive--the Cabinet and the Prime Minister--are members of
Parliament.
The highest court of appeal is the House of Lords. The separation of
powers
was also in contrast to the government under the Articles
of
Confederation. The Articles provided for no separate executive branch.
The
president was the presiding officer of the Congress. There was no
national court
system at all. The framers of the Constitution decided on a
government in which
the three main functions would be held by three separate
branches. The Congress
was empowered to make laws. The president was
empowered, through the departments
and agencies of the executive branch, to
enforce the laws. The president is thus
the head of the bureaucracy--the
non-elected officials of government. The
Supreme Court was established as
the highest judicial authority. John Adams
referred to this three-part
arrangement as a system of checks and balances that
protect the people from
authoritarian or arbitrary rule. In addition to
distributing power among the
three branches of the federal government, the
Constitution also
distributes it among the states and the people. The Tenth
Amendment
specifically reserves all "powers not delegated to the United
States" to
the "States respectively, or to the people." Within
each state there are many
other governmental units. Each local government, from
the smallest village to
the largest city, has its necessary powers. There are
taxing bodies, such as
school districts, that have the authority they need in
order to operate.
Before continuing to mention how the separation of powers is
applied in the
United States presidential system, let me briefly explain the
structure of
the presidential system. The Presidential System United States
Government
The federal government of the United States was created by
the
Constitution, which went into operation in 1789 when the first
Congress convened
and George Washington took the oath of office as president.
The government is
called federal because it was formed by a compact (the
Constitution) among 13
political units (the states). These states agreed to
give up part of their
independence, or sovereignty, in order to form a
central authority and submit
themselves to it. Thus, what was essentially a
group of 13 separate countries
under the Articles of Confederation united to
form one nation under the
Constitution. When the Declaration of
Independence was issued in 1776, it used
the term United States of America.
Until the Constitution was adopted and
ratified, however, the 13 states did
not really form one nation. They each held
onto so many powers individually,
including conducting foreign policy and trade
negotiations, that the
Continental Congress could only do what the states
allowed. The Articles were
never the law of the land to the extent that the
Constitution is. In
essence, the United States as a nation did not come into
existence until the
Constitution began to function as the framework of the
government. Once the
Constitution was in place, tension between the states and
the federal
government did not automatically cease. Many political thinkers
believed that
the states were really the supreme authority. According to this
viewpoint,
states could nullify acts of the federal government that were
disagreeable to
them. One of the strongest proponents of this view was John C.
Calhoun,
senator from South Carolina. His chief opponent was Chief Justice
John
Marshall. Calhoun's position, called states' rights, has persisted
to the
present. It was seriously undermined, however, by the American Civil
War. Since
that war the federal government has gained much power at the
expense of the
states. The best known characteristic of the presidential
system is the
separation of powers. The three principal functions of the
government are the
formal promulgation of the law, its administration, and
its adjudication. These
are established in separate and co-ordinate branches.
We call them the
legislative, the executive and the judicial; they are
independent of one
another, but are at the same time made interdependent.
(The judicial branch
enjoys a considerable degree of independence in all
nations subscribing to the
Anglo-American tradition of jurisprudence,
regardless of whether they have
adopted the presidential system.) CONGRESS:
The Legislation Branch One of the
most difficult debates in the
Constitutional Convention of 1787 centred on
representation. The large states
desired representation in proportion to
population in the proposed national
legislature. This would, of course, have
allowed them to control legislation
because they would have had more legislators
than small states. The small
states, conversely, wanted equal representation. On
June 11, 1787,
delegate Roger Sherman of Connecticut proposed the plan that was
eventually
adopted. It called for a bicameral, or two-house, legislature in
which one
house has proportional representation and the other equal
representation.
Thus the small states were placated by having equal
representation and the
large states with proportional representation. After much
wrangling among the
delegates, the plan was adopted on July 16. The Congress was
created by
Article I, section 1, of the Constitution: "All legislative
powers herein
shall be vested in a Congress of the United States, which shall
consist of a
Senate and House of Representatives." Chief among the powers
of congress is
the power to assess and collect taxes, for it is this authority
that makes
running the whole government, including the other two branches,
possible. The
power to decide how to spend money lies in both houses, but only
the House of
Representatives has the authority to originate bills for raising
revenue.
Each house, because it is the judge of the "qualifications of its
own
members," may punish its members for misbehaviour. Members can be
expelled by
a two-thirds vote. House of Representatives The House of
Representatives
was intended by the framers of the Constitution to reflect the
popular will.
Its members therefore are directly elected by the people. The
number of
representatives from each state is proportional to the size of the
state's
population. No state, however, has less than one
representative.
Representation is reapportioned after every census. After
the states receive
their quota of seats, the states themselves determine the
boundaries of the
congressional districts. In 1964 the Supreme Court ruled
that population sizes
within each district must be approximately equal. The
special powers of the
House are two: the right to originate revenue bills
and the right to begin
impeachment proceedings. Senate The Senate has 100
members, two for each state.
Since 1913, when the 17th Amendment was
ratified, senators have been directly
elected by the people. Prior to that
year they were elected by state
legislatures. When vacancies occur between
elections, state governors appoint
replacements. The Senate has some special
powers not accorded to the House. It
approves or disapproves of presidential
appointments; it can approve treaties,
by a two-thirds vote; and it is the
court for impeachment trials. To become a
senator an individual must be at
least 30 years of age, a citizen of the United
States for nine years, and
a resident of the state from which elected. The full
term of a senator is six
years. The terms of one third of the members expire
every two years. The
presiding officer of the Senate is the vice-president of
the United States.
It is the only duty for that official prescribed by the
Constitution. In
his absence the presiding officer is the president pro tempore,
meaning "for
the time being," who is elected by the membership. As in
the House, there is
a majority leader and a minority leader. The Senate majority
leader is often
a powerful figure in government, especially if the president is
of the other
party. The Senate, in its floor debates, has more freedom of action
than does
the House. As a rule, debate on a measure continues until every
senator has
had a chance to say everything he wishes on it. Freedom of debate
is
occasionally abused by a filibuster, a device by which a senator can
talk
endlessly to prevent a bill from coming to a vote. Senate rules provide
for
stopping a filibuster by the application of cloture, or closing debate,
which
requires the support of two thirds of the members present and voting.
The
cloture rule was adopted in 1917. EXECUTIVE BRANCH Just as the delegates
to the
Constitutional Convention had differences over the nature of
Congress, so too
were there sharp disagreements on the nature of the
Executive Office. Should
there be one president or three? Should he serve for
life or for a limited term?
Was he eligible for re-election? Should he be
elected by the people, by the
governors of the states, or by Congress? The
outcome of the debates was Article
II of the Constitution, outlining the
office of the president. The presidency
would consist of one individual
holding office for four years but eligible for
re-election. Because the
delegates did not trust the people to elect a president
directly, they
established an indirect method. Electors chosen by state
legislatures (and
eventually by the voters) voted for candidates for the
presidency. To be
eligible for the presidency a person must be a native-born
citizen, 35 years
of age, and must have lived in the United States for at least
14 years.
Based on the example set by George Washington, successive presidents
did not
seek more than a second term until Franklin D. Roosevelt ran for office
and
was elected four times, beginning in 1932. The 22nd Amendment, ratified
in
1951, limits the term of office for presidents. The Constitution gives
many
specific powers to the president. Other powers have accrued to the
office
through laws passed by Congress, through interpretations of laws by
the courts,
and through the president's position as leader of his party. The
president is
charged with enforcing all federal laws and with supervising all
federal
administrative agencies. In practice these powers are delegated to
subordinates.
The president's principal helpers include the White House
staff, specialised
agencies of the Executive Office, and the heads of
executive departments and
their agencies and bureau’s. Except for the White
House staff, the individuals
in charge of agencies and departments are
appointed by the president, subject to
approval by the Senate. The president
nominates all officials, administrative or
judicial, who are not
civil-service employees. The Constitution gives the
president the power to
grant reprieves and pardons to persons convicted of
crimes against the United
States. This power is denied only in the case of an
individual convicted on
impeachment. The president exercises far-reaching powers
in the conduct of
foreign policy. In most cases he acts through the secretary of
state and the
Department of State. The president negotiates treaties, mostly
through
subordinates. These are subject to confirmation by a two-thirds vote in
the
Senate. He nominates ambassadors, ministers, and consuls to represent
the
United States abroad. He takes the lead in recognising new regimes
or
withholding official recognition. Closely related to his foreign
policy
authority is the president's role as commander in chief of all the
armed forces.
He appoints all commissioned officers of the Army, Navy,
Air Force, and Marines.
During wartime he may become involved in planning
strategy. Proper functioning
of the government depends in great measure on
the president's relations with
Congress. It is his responsibility to keep
Congress informed of the need for new
legislation. He must also submit an
annual budget for all the government
expenditures. The departments and
agencies are required to send Congress
periodic reports of their activities
and members of departments and agencies are
often required to testify before
committees of Congress on matters of pending
legislation or other issues. In
times of war or other national crisis, Congress
usually grants the president
emergency powers. These powers include the
authority to issue orders
regulating most phases of national life and the war
effort, to organise
special agencies of government, and to make appointments
without
confirmation. In normal times, as well as during emergencies, Congress
may
pass laws establishing a policy but leaving the details to be worked out
by
the Executive Office. The president then publishes an executive order that
has
the force of law. The only official duty of the vice-president is to
preside
over the Senate, though he does not take part in its deliberations.
He casts a
deciding vote in case of a tie. In the president's absence he
presides over
meetings of the Cabinet. Originally there were no candidates
for this office.
The man receiving the second-largest number of votes for
president became
vice-president. In 1801 Thomas Jefferson and Aaron Burr each
received 73
electoral votes, and the House of Representatives had to decide
between the two
candidates. After 36 ballots Jefferson became president and
Burr vice-president.
As the party system developed, separate candidates
were nominated for each
office on the same ticket. THE JUDICIARY This is the
body charged with enforcing
laws and, in some states, upholding the
constitutional rules. This includes the
Supreme Court and State courts.
The Constitution is a written document whose
words cannot be changed except
by the process of amendment. But the meaning of
the words is not always
interpreted in the same way by members of opposing
political parties or by
persons engaged in lawsuits over property or human
rights. Thus it has been
necessary for someone to interpret it--that is, to
determine what it means in
any controversy. This duty is entrusted to the
Supreme Court. It provides
that the Constitution and the laws made "in
pursuance thereof, shall be the
supreme law of the land." The Supreme Court
therefore has two kinds of
duties: one, to decide cases of law; the other, to
decide what the
Constitution means. Sometimes people who have been dissatisfied
with
decisions made by the Supreme Court have said that the power to determine
the
meaning of the Constitution ought to be exercised by Congress; but since
a
law inconsistent with the Constitution cannot be a valid law, it must not
be
enforced. Only the court before which the enforcement of such a law comes
can
easily make the decision. The Separation of Powers In American states,
members
of all three branches are commonly elected directly by voters. The
federal
government does not have an elected judiciary; judges are appointed
and can be
removed only under most unusual circumstances. The interdependence
of the three
branches is secured by what is obverse of the separation of
powers, namely the
checks and balances system as mentioned earlier. The
separation of powers is
important in a political system. Montesquieu truly
believed this, he says when
legislative power is united with executive power
in a single person or a single
body of magistracy, there is no liberty,
because one can fear that the same
monarch or senate that makes tyrannical
laws will execute them tyrannically. Nor
is there liberty if the power of
judging is not separate from legislative power
and from executive power. If
it were joined to legislative power, the power over
the life and liberty of
the citizens would be arbitrary, for the judge would be
the legislator. If it
were joined to the executive power, the judge could have
the force of an
oppressor. The prime concern of Montesquieu was to avoid the
access of
political power, which might occur if too much power was concentrated
into
the hands of one area of government. But the separation of power in
the
United States is incomplete. Here are a few examples of how the
separation of
powers in the American political system is incomplete: ? The
political
system of the USA is, in reality, is dominated by the president,
who as the
focus of popular attention can appeal to the public directly in a
way that the
other elements of the system cannot. ? Congress can pass a bill,
but the
President can prevent it from becoming a law by vetoing it.
Should the president
veto a bill, it may be enacted over his veto by a
two-thirds vote of both
houses. Failure to re-pass in either house kills it.
If a bill is not signed or
returned by the president, it becomes law after
ten working days. If the
president does not return a bill and Congress has
adjourned in the meantime,
however, the bill does not become law. This
procedure is called a pocket veto.
Bills introduced in either house are
first sent to the committee having
jurisdiction over them. A committee can
kill a bill, bury it, or amend it. If
the bill is reported favourably out of
committee, it is sent to the floor of the
respective house for debate and
passage--with or without amendments. A bill
passed by one house is sent to
the other for consideration. There it may be
passed intact, it may be amended
and passed, or it may be defeated. If one house
does not accept the version
of a bill passed by the other house, the bill is
sent to a conference
committee composed of members of both houses. After final
passage the bill is
signed by the speaker of the House and the vice-president
(who is the
presiding officer of the Senate) and sent to the president for his
signature.
If the bill does become law, it is subject to interpretation by the
courts,
which decide its actual application to specific cases. The courts may
even
declare the law to be unconstitutional, thus setting it aside. However,
the
judicial interpretation may, in turn, be overruled if Congress
enacts
legislation that overcomes the courts’ objections to the earlier law.
?
Committees of each house are controlled by the political party that has
a
majority of members in that house. Appointments to committees are mostly
based
on seniority. The ranking, or most senior, member normally becomes
chairman. In
addition to its committee and lawmaking activities, Congress
also exercises a
general legal control over all government employees. It may
also exercise
political control through the Senate's power of approving
presidential
nominations. Congress cannot remove officials from office except
by its power of
impeachment. In an impeachment proceeding the House acts as a
grand jury,
gathering evidence and securing an indictment. The Senate then
becomes the court
in which the case is tried. There has only been one
complete presidential
impeachment proceeding in American history--that of
Andrew Johnson--and he was
acquitted. A bill of impeachment was voted against
Richard M. Nixon, but he
resigned before a Senate trial could begin. ? The
president can appoint a
judge to a Federal court, but the appointment is
subject to approval of the
Senate, and a judge, like the president
himself, may be impeached and, if
convicted, removed from office by a
procedure involving the two houses of
congress. ? If a member of an executive
branch fails to perform some act
that a citizen feels is his legal duty, the
citizen may ask a court to issue an
order requiring the official to perform
his duty. ? If congressional
leaders are dissatisfied with the way in which
an executive agency is
administered, they may conduct an investigation that
may cause the policies of
the agency to be altered, either because of
resulting new legislation, or
because of the glaring headlines concerning the
agency. An investigation may
also be conducted by a federal grand jury or, in
certain circumstances, by a
Federal judge. The checks and balances system
is based on the idea that in a
democracy no one person or institution should
ever be able to gain absolute
power and control, and the best way to prevent
this from happening is to have
each officeholder hold some power over other
officeholders. But this is not
complete in the American political system, as
we have seen the ability of
different parts of the political system are able
to check one another, i.e. the
government can veto a bill from congress,
congress can impeach the President.
Therefore I conclude that the
separation of powers in the American political
system is incomplete.