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Pruning the Branches of Government

Wednesday, June 28, 2006

This morning, I wanted to briefly look at the separation of powers and the checks and balances that were built into our Constitution. The framers wanted these put in place to help protect and ensure that the public were never again subjected to despotic rule. So, let's start with the following which can be found at the website. You can click on each respective link for a broader explanation of what each branch's duties are. I've added (in bold) a brief synopsis for each branch below it's section. (Note: The information provided on the site is really pretty basic.)
Branches of Government
White House
Executive Branch
The power of the executive branch is vested in the President, who also serves as Commander in Chief of the Armed Forces.
The Executive Branch is meant to execute and enforce the laws of the land.
U.S. Supreme Court
Judicial Branch
The judicial branch hears cases that challenge or require interpretation of the legislation passed by Congress and signed by the President.

The Judicial Branch is meant to resolve disputes and interpret the intent of the laws of the land.

U.S. Capitol
Legislative Branch
The legislative branch of the federal government consists of the Congress, which is divided into two chambers -- the Senate and the House of Representatives.

The Legislative Branch is meant to create the laws of the land.

 For a more indepth look at the speration of powers and checks and balances, let's turn to Wikipedia:

Seperation of Powers

The separation of powers (or trias politica, a term coined by French political thinker Montesquieu) is a model for the governance of the state. This same principle is applied in non-political realms under the term separation of duties.

Montesquieu proposed division of political power between an executive, a legislature, and a judiciary. Under this model, each branch has separate and independent powers and areas of responsibility; however, each branch is also able to place limits on the power exerted by the other branches.

The United States

Main article: Separation of powers under the United States Constitution

In drafting the United States Constitution, the framers are believed to have included the best features of many concepts including the then-new concept of the separation of powers. The concept is also prominent in the state governments of the United States; as colonies of Britain, the founding fathers felt that the American states had suffered an abuse of the broad power of the monarchy. As a remedy, the American Constitution limits the powers of the federal government through several means, but in particular by dividing up the power of the government among three competing branches of government. Each branch checks the actions of the others and balances their powers in some way.

Branch Constitutional Powers Executive counterbalance Legislative counterbalance Judicial counterbalance
  • Operational command of government services and contracts
  • Sole power to wage war (operational command of the military)
  • Responsibility for negotiating treaties
  • Power to appoint judges, diplomats, cabinet, and department heads
  • Police powers of arrest, detainment, and search
  • Prosecutes crimes
  • Collects taxes
  • Civilian and military chains of command constrain low-level executive officials to obey the policies of high-level non-executive officials.
  • Extensive bureaucracy limits ability of executive to make extensive changes in operational practices.
  • Power to determine what laws exist
  • Power to write laws to constrain the internal operation of government
  • Power to write laws limiting searches, arrests, and detentions
  • Power to make laws concerning what regulations may be declared by the executive
  • Power to declare war
  • Responsibility for ratifying treaties (Senate)
  • Responsibility for confirming executive appointments (Senate)
  • Power to set the budget of the executive
  • Power to impeach and remove executive officers (two-thirds majority)
  • Power to set limits
  • Acts as a neutral mediator when the executive brings criminal or civil enforcement actions, and has the power to stop inappropriate enforcement
  • Issues warrants for searches and arrests
  • May declare actions of the executive to be illegal and/or unconstitutional
  • Determines which laws apply to any given case
  • Power to write laws
  • Power to enact taxes, authorize borrowing, and set the budget
  • Sole power to declare war
  • Various other powers of the federal government
  • Subpoena (investigative) power
  • Power to confirm Supreme Court judges and Executive cabinet officials
  • May veto laws (but this may be overridden by a two-thirds majority in both houses)
  • May refuse to enforce certain laws
  • May refuse to spend money allocated for certain purposes
  • Sole power to wage war (operational command of the military)
  • Responsibility for making declarations (for example, declaring a state of emergency) and promulgating lawful regulations and executive orders
  • Executive privilege (refusal to submit to legislative subpoena)
  • Use of the bully pulpit to propose and advocate for laws
  • Each house is responsible for policing its own members.
  • Powers internal to the legislature are split between its two houses, the Senate and the House of Representatives. Only the House may originate spending bills. Only the House may impeach the President, but only the Senate may remove him or her from office. Only the Senate approves treaties and nominees.
  • Each house can prevent the other from passing any law.
  • May declare laws unconstitutional and unenforceable
  • Determines which laws apply to any given case
Supreme Court)
  • Sole power to interpret the law and apply it to particular disputes
  • Power to determine the disposition of prisoners
  • Appointed for life
  • Power to compel testimony and the production of documents
  • Responsibility to appoint judges
  • Power to grant pardons to federal offenders
  • Sole Federal Agency with the power to pass Constitutional amendments (by two-thirds majority and with the consent of three-quarters of the states)
  • Power to determine the size and structure of the courts
  • Power to determine the budgets of the courts
  • Responsibility for confirming judicial nominees
  • Power to impeach and remove judges
  • Power to determine courts' jurisdiction (except Supreme Court's original jurisdiction)
  • The appeals process enforces uniform policies in a top-down fashion, 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 being reviewed.)
  • May only rule in cases of an actual dispute brought between actual petitioners
  • Polices its own members

Maintaining balance

The independence of the executive and legislative branches is partly maintained by the fact that they are separately elected, and are held directly accountable to the public. There are also judicial prohibitions against certain types of interference in each others' affairs. (See "separation of powers" cases in the List of United States Supreme Court cases.) Judicial independence is maintained by life appointments, with voluntary retirement, and a high threshold for removal by the legislature. Recently the accusation of judicial activism has been leveled at some judges, and that the power of interpretation of law is misused.

The legal mechanisms constraining the powers of the three branches depend a great deal on the popular sentiment of the people of the United States. Popular support establishes legitimacy, and makes possible the physical implementation of legal authority. National crises (such as the Civil War, the Great Depression, pre-Pearl Harbor World War II, the Vietnam War) have been the times at which the principle of separation of powers has been most endangered, through official "misbehavior" or through the willingness of the public to sacrifice such principles if more pressing problems are solved. In the present day, the American state is remarkably stable, and all three branches have largely enjoyed their sovereign powers continuously since the founding of the republic.

The system of checks and balancing is also self-reinforcing. Potential abuse of power is deterred and the legitimacy and sustainability of any power grab is undermined by the ability of the other two branches to take corrective action. This is intended to reduce opportunities for tyranny and to increase the general stability of the government.

However, as James Madison wrote in Federalist 51 regarding the ability of each branch to defend itself from actions by the others, "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates." Bicameralism was, in part, intended to reduce the relative power of the legislature, by turning it against itself, by having "different modes of election and different principles of action." (This is one of the arguments against the popular election of Senators, which was instituted by the Seventeenth Amendment.) But when the legislature is unified, it wields dominant, unbalanced, power over the other branches.

Now that we have a relatively decent grasp of these two concepts, we can more closely look at what we've been witnessing lately. Namely, the Bush administration's gathering of more and more power unto itself. They have done this mostly by claiming authority found in the Authorization for the Use of Military Force against (a) terrorism and (b) Iraq. After a cursory read of each of these AUMF's, one can tell that you would really have to stretch their words to create the claimed authority.
This example is exactly why we have the three branches of government. When one branch becomes too powerful, the other two are supposed to step up to put it back in it's place. This safeguarding mechanism was built so that the people didn't have to take up arms every time government exceeded it's authority. Unfortunately, what we've seen lately is but a half-hearted effort by Congress to reign in the Executive not to mention the Judicial System's stance of, "If you don't make us rule on whatever it is that you're doing then you can keep doing it."
What this administration has managed to do is position itself as the controlling power by claiming some immaculate Commander in Chief authority derived from the AUMF's Congress passed. He's made the other two branches subordinates to the Executive through political appointment or party politics. It seems, however, that at least one of the underlings has grown tired of the "whipping boy" status. Senator Arlen Specter has opened hearings on the issue of the President's signing statements. He's quoted as saying, "It's a challenge to the plain language of the Constitution. There is a sense that the president has taken signing statements far beyond the customary purview."
Signing statements: what better way to circumvent the intent of the framer's construction of the three branches of government? By issuing signing statements, the President can rewrite the laws--authority reserved exclusively to Congress--as well as interpret the laws as he sees fit--authority reserved exclusively to the Judiciary. What's worse is the notion that if, at some future date, a dispute ever comes before the court, who's version of the law do you use? Do you use the one passed by Congress or the one that has been bastardized by the Executive? Who decides? When the public at large read the laws (to make sure they live their lives in compliance with the millions of regulations we have now), who's version do they use? What do they do if they find contradictions between the laws issued by Congress and the rewrite done by the Executive? Who's right?
Remind me again that we don't live under a dictator because I'm having a hard time proving it to myself.


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