Separation of Powers: System of Checks and Balances

On February 10, 1755 Montesquieu, French writer died (b. 1689). From the article:

"Separation of Powers: System of Checks and Balances
Because, 'All Men Having Power Ought be Mistrusted.'

The governmental concept of separation of powers enforced through a series of checks and balances was incorporated into the U.S. Constitution to ensure that no single person or branch of the new government could ever become too powerful.

The system of checks and balances is intended to make sure that no branch or department of the federal government be allowed to exceed its bounds, to guard against fraud, and to allow for the timely correction of errors or omissions. Indeed, the system of checks and balances is intended to act as a sort of sentry over the separation of powers, balancing the authorities of the separate branches of government. In practical use, the authority to take a given action rests with one department, while the responsibility to verify the appropriateness and legality of that action rests with another.

Founding Fathers like James Madison knew all too well from hard experience the dangers of unchecked power in government. Or as Madison himself put it, “The truth is that all men having power ought to be mistrusted.”

Madison and his fellow framers believed that in creating any government administered by humans over humans, “You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

The concept of separation of powers, or “trias politica” dates to 18th century France, when social and political philosopher Montesquieu published his famed Spirit of the Laws. Considered one of the greatest works in the history of political theory and jurisprudence, Spirit of the Laws is believed to have inspired both the Declaration of the Rights and the Constitution.

Indeed, the model of government conceived by Montesquieu had divided the political authority of the state into executive, legislative, and judicial powers. He asserted that ensuring that the three powers operate separately and independently was the key to liberty.

In American government, these three powers of the three branches are:

The legislative branch enacts the nation’s laws.
The executive branch implements and enforces the laws enacted by the legislative branch.
The judicial branch interprets the laws in reference to the Constitution and applies its interpretations to legal controversies involving the laws.
So well-accepted is the concept of separation of powers, that the constitutions of 40 states specify that their governments be divided into similarly empowers legislative, executive, and judicial branches.

Three Branches, Separate But Equal
In the provision of the three branches of governmental power—legislative, executive, and judicial – into the Constitution, the framers built their vision of a stable federal government as assured by a system of separation of powers with checks and balances.

As Madison wrote in the Federalist Papers No. 51, published in 1788, “The accumulation of all powers, legislative, executive and judicial in the same hands, whether of one, a few, or many, and whether hereditary, self–appointed, or elective, may justly be pronounced the very definition of tyranny.”

In both theory and practice, the power of each branch of American government is held in check by the powers of the other two in several ways.

For example, while the President of the United States (executive branch) can veto laws passed by Congress (legislative branch), Congress can override presidential vetoes with a two-thirds vote of both houses.

Similarly, the Supreme Court (judicial branch) can nullify laws passed by Congress by ruling them to be unconstitutional.

However, the Supreme Court’s power is balanced by the fact that its presiding judges must be appointed by the president with the approval of the Senate.

Specific examples of separation of powers through checks and balances include:

Executive Branch Checks and Balances on the Legislative Branch
President has the power to veto laws passed by Congress
Can propose new laws to Congress
Submits the Federal Budget to the House of Representatives
Appoints federal officials, who carry out and enforce laws
Executive Branch Checks and Balances on the Judicial Branch
Nominates judges to the Supreme Court
Nominates judges to the federal court system
President has the power to pardon or grant amnesty to persons convicted of crimes
Legislative Branch Checks and Balances on the Executive Branch
Congress can override presidential vetoes with a 2/3 vote of both chambers
Senate can reject proposed treaties with a 2/3 vote
Senate can reject presidential nominations of federal officials or judges
Congress can impeach and remove the president (House serves as prosecution, Senate serves as jury)
Legislative Branch Checks and Balances on the Judicial Branch
Congress can create lower courts
Senate can reject nominees to the federal courts and Supreme Court
Congress can amend the Constitution to overturn decisions of the Supreme Court
Congress can impeach judges of the lower federal courts
Judicial Branch Checks and Balances on the Executive Branch
Supreme Court can use the power of judicial review to rule laws unconstitutional
Judicial Branch Checks and Balances on the Legislative Branch
Supreme Court can use the power of judicial review to rule presidential actions unconstitutional
Supreme Court can use the power of judicial review to rule treaties unconstitutional
But Are the Branches Truly Equal?
Over the years, the executive branch has—often controversially—attempted to expand its authority over the legislative and judicial branches.

After the Civil War, the executive branch sought to expand the scope of the constitutional powers granted to the president as Commander in Chief of a standing army. Other more recent examples of largely unchecked executive branch powers include:

the power to issue executive orders;
the power to declare local and national emergencies;
the power to grant and revoke security classifications;
the power grant presidential pardons for federal crimes;
the power to issue presidential bill signing statements; and
the power to withhold information from Congress through executive privilege.
Some people argue that there are more checks or limitations on the power of the legislative branch than over the other two branches. For example, both the executive and judicial branches can override or nullify the laws it passes. While they are basically correct, it is how the Founding Fathers intended.

Our system of separation of powers through checks and balances reflects the Founders’ interpretation of a republican form of government in which the legislative or lawmaking branch, as the most powerful branch, must also be the most restrained.

The Founders believed this because the Constitution grants “We the People” the power to govern ourselves through the very laws we demand of the representatives we elect to the legislative branch.

Or as James Madison put it in Federalist No. 48, “The legislative derives superiority… [i]ts constitutional powers [are] more extensive, and less susceptible to precise limits… [it] is not possible to give each [branch] an equal [number of checks on the other branches]”"