The separation of powers is fundamental in a constitutional system. It reflects on the three branches of the government, and the functions they carry out. That’s what we’re going to see here.
Today, I want to speak to you about the three branches of the government and their functions.
Any constitutional government involves the separation of powers. So, this discussion is valid for any country with this sort of political system. However, I want to focus on the American case. You may ask your self, why? The reason is simple: in the US, the separation of powers is more explicit and even more real, than any other country with a constitutional system. In this way, the US provides an excellent example of what the three branches are and what they do.
The US constitution sets the political architecture of this country. The Founding Fathers considered fundamental the division of power to prevent the rise of a Leviathan. Regarding this, they had experienced problems with the British Empire. For this reason, they understood the perils of unbalanced power. Besides, the English seventeenth century was very illustrative of how threatening can be an unrestrained power. So, they were aware of the importance of a limited government, and they took measures to confine it.
However, we shouldn’t forget the importance of the way each branch of the government relates to the other two. In the American case, the separation of powers is clear. The legislative and executive branches are elected by the public periodically. Justices with lifetime tenure form the judicial branch. The President appoints them with the advice and consent of the Senate. Let’s take a closer look at these institutions and find out what they do.
Three branches and three different institutions. The Congress, the Presidency and the Supreme Court. Let’s address them one by one.
The US Congress is formed by the Senate and the House of Representatives. Both chambers constitute the legislative branch. Their primary function is the approval of bills at the federal level and the overseeing of the executive branch.
The House of Representatives is the lower House. It’s composed of representatives who sit in congressional districts that are allocated to each of the 50 States by population, with each district entitled to one representative. The presiding officer is the speaker of the House, who is elected by the rest of the representatives. This House represents the American people.
The Senate is the upper house. It’s composed of senators, each of whom represents a single State in its entirety. Each State, regardless of its population size, is equally represented by two senators who serve staggered terms of six years. Senators are elected by popular vote, but from 1789 to 1913, legislatures of the States appointed them.
As the upper House, the Senate has several powers of advice and consent that are unique to it. These include the approval of treaties, and the confirmation of certain federal officials such as Cabinet secretaries, Supreme Court justices, federal judges, ambassadors, other federal executive officials, and other federal uniformed officers. It also has the responsibility of conducting the trials of those impeached by the House. The presiding officer of the Senate is the vice president of the United States. The Senate represents the States of the Union.
Either House of Congress may introduce bills. However, the Senate doesn’t have the power to initiate bills imposing taxes because this is an exclusive prerogative of the lower House. In any case, every single bill needs the approval of both Houses to become law. If both Houses approve different versions of the same bill, they have to reach an agreement. They may solve this situation by sending amendments back and forth or by a conference committee, which includes members of both bodies.
The Presidency is the head of State and head of government of the United States of America. The president is in charge of directing the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces. The most important powers of the president include the execution and enforcement of federal law, alongside the responsibility of appointing federal executive, diplomatic, regulatory, and judicial officers, as well as concluding treaties with foreign powers with the advice and consent of the Senate. The president also directs the foreign and domestic policies and has the power to sign or veto federal legislation.
Registered voters indirectly elect the president through the Electoral College to a four-year term. So, this is the only federal election in the US that is not decided by popular vote.
According to the Twenty-second Amendment, no person who has been elected to two presidential terms may be elected to a third. Before the approbation of this Amendment in 1947, there was the custom of not running for a third mandate, but Franklin Delano Roosevelt broke this tradition.
The Presidency has no powers to introduce legislation in the Congress, but it has influence on senators and representatives to make them put forward its initiatives.
The administrative powers of the president are remarkable insofar as the Presidency has the duty of taking care that the laws are enforced. Furthermore, the president makes numerous appointments but, at the same time, has the power to remove executive officials at will. Despite this, Congress can curtail and constrain the president’s authority to fire commissioners of independent regulatory agencies and certain inferior executive officers by statute.
The president also possesses the power to manage operations of the federal government by issuing various types of directives, such as presidential proclamation and executive orders. When the president is exercising the constitutionally conferred presidential responsibilities, the scope of this power is broad. Nevertheless, these directives are under the overseeing of the other two branches. For instance, US federal courts may find them unconstitutional, or the Congress may overturn an executive order through legislation.
The Supreme Court of the United States is the highest court in the federal judiciary of the US. It has ultimate and largely discretionary appellate jurisdiction over all federal and State court cases that involve a point of federal law. And it also has authority over a narrow range of matters related to the federal administration. Among its prerogatives, the court holds the power of judicial review, the ability to invalidate a statute for violating a provision of the US Constitution, and strike down presidential directives for violating either the Constitution or statutory law. Nevertheless, it may act only within the context of a case in an area of law over which it has jurisdiction.
The chief of justice of the US and eight associate justice form the Supreme Court. Each judge has lifetime tenure, which means that they remain on the court until they resign, retire, die, or are removed from office. When a vacancy occurs, the president, with the advice and consent of the Senate, appoints a new justice. Each justice has a single vote in deciding the cases argued before it. The law enforcement arm of this institution is the Supreme Court Police.
This institution is the only one that is not elected by the public, and whose legitimacy comes from the Senate and the Presidency. Aside from this, it focuses its activity on judicial review and compliance with the constitution.
Now, the question is, how do these powers interact? How do they keep separate and balancing each other? I’ve already said something about it, but let’s expand the discussion a bit more.
The constitutional development of the federal government hasn’t been smooth all the time. There were jurisdictional quarrels around several issues. Nevertheless, in formal terms, the US constitution doesn’t have explicit provisions for the government branches’ interactions in certain situations, especially when there is a disagreement between them. Despite this, none of these branches can work without restrictions. They all depend on the others for their working, or even for some appointments.
For instance, the constitution doesn’t say anything about who can draft bills. In many cases, the executive branch prepares them. But the Presidency needs the cooperation of the Lower House to introduce and pass them. For this reason, the influence over representatives of Congress is essential to carry out public policies. There is a quid pro quo between the Presidency and the senators and representatives. That makes possible the approval of new legislation designed by the executive.
Another example is the capacity of the Senate to influence the draft of fiscal bills to impose new taxes or pass appropriation bills. That occurs when the Senate amends revenue bills passed by the Lower House. It might end up in a going back and forth of amendments between the two Houses.
The peculiarity of the US government is the organization of its different branches. And, more specifically, how sovereignty works. Let’s take a look at it.
In parliamentary systems, the executive depends on the legislative branch, because the legislature chooses the members of the cabinet. However, the US political system is presidential. That means the executive is selected by the public, not by anyone else. For this reason, the president has great autonomy compared to prime ministers in parliamentary systems. Indeed, the Presidency has considerable powers in its realm, although the other branches can curtail these powers.
In the meantime, Congress is the institution where sovereign rests, and it has the same legitimacy as the Presidency. Nevertheless, its function is quite different insofar as it oversees the actions of the executive branch, and passes bills. In contrast to parliamentary systems, Congress takes part neither in the designation of the head of State nor in the appointment of departments’ Secretaries.
In the case of the Supreme Court, this institution oversees the activity of the other two branches to make them comply with the constitution. But at the same time, the legislative and executive branches can intervene in this court by appointing their members, and even determining the number of justices.
The former explanation is quite formal, and it reflects the arrangements established by the constitution. Nevertheless, how is the real working of the whole system? The answer shows us the backstage politics.
The over-expanded federal administration, with its endless agencies, and its vast resources in economic and human terms, provides us with the big picture of the real state of American politics.
We’re before a Leviathan if we consider both its size and its means. An impersonal structure with over 3 million officials, and a budget of roughly 4 trillion dollars. The executive branch has, indeed, a dominant and leading role at the federal level. Its overwhelming capacities overshadow the legislative and judicial branches.
If the legislative branch embodied in the Congress was established to restrain the executive, historically identified with the monarchical power, now the situation is quite the opposite. The federal bureaucracy exercises an outstanding influence on every matter, up to the point of manipulating States politics with its subsidies and the allocation of federal infrastructures.
All of this leads us to consider the presidential powers to asses the capacities of this office. But also, how powerful is, in reality, the president. That’s something interesting to contrast what the constitution says and what happens in real life. But that will happen in the next video, so, subscribe now and you won’t miss anything.
Question of the day! What is in your opinion the future of representative government? Post it in the comments section below, and I’ll check it out.
Bibliography used:
Sabine, George, A History of Political Theory
Morgan, Edmund, The Birth of the Republic
Locke, John, Two Treatises of Government
Glennon, Michael, National Security and Double Government
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