The Separation of Power and Check and Balance - 1

The Separation of Power:
Introduction:
The term “Separation of Powers” was coined by the 18th century philosopher Montesquieu.
Separation of powers is a model that divides the government into separate branches, each of
which has separate and independent powers. By having multiple branches of government, this
system helps to ensure that no one branch is more powerful than another. Typically, this system
divides the government into three branches: the Legislative Branch, the Executive Branch, and
the Judicial Branch. The United States federal government and forty states divide their
governments into these three branches.
Separation of Power in US Constitution:

In the federal government, Article 1 of the United States Constitution establishes the Legislative
Branch, which consists of Congress. Congress, in addition to other enumerated responsibilities,
is responsible for creating laws. As a general rule, the non-delegation doctrine (The non-
delegation doctrine is a principle in administrative law that Congress cannot delegate its
legislative powers to other entities) prohibits the Legislative Branch from delegating its
lawmaking responsibilities. Congress can, however, provide agencies with regulatory guidelines
if it provides them with an “intelligible principle” to base their regulations on.
Article 2 of the United States Constitution establishes the Executive Branch, which consists of
the President. The President approves and carries out the laws created by the Legislative Branch.
Article 3 of the United States Constitution establishes the Judicial Branch, which consists of the
United States Supreme Court. The Judicial Branch interprets the laws passed by the Legislative
Branch.
2. CHECK AND BALANCE SYSTEM

Introduction:
Separation of Powers in the United States is associated with the Checks and Balances system.
The Checks and Balances system provides each branch of government with individual powers to
check the other branches and prevent any one branch from becoming too powerful. For example,
Congress has the power to create laws, the President has the power to veto them, and the
Supreme Court may declare laws unconstitutional. Congress consists of two houses: the Senate
and the House of Representatives, and can override a Presidential veto with a 2/3 vote in both
houses.
History:
The idea that a just and fair government must divide power between various branches
did not originate at the Constitutional Convention, but has deep philosophical and
historical roots.
In his analysis of the government of Ancient Rome, the Greek statesman and historian
Polybius identified it as a “mixed” regime with three branches: monarchy (the consul,
or chief magistrate), aristocracy (the Senate) and democracy (the people). These
concepts greatly influenced later ideas about separation of powers being crucial to a
well-functioning government.
Centuries later, the Enlightenment philosopher Baron de Montesquieu wrote of
despotism as the primary threat in any government. In his famous work “The Spirit of
the Laws,” Montesquieu argued that the best way to prevent this was through a
separation of powers, in which different bodies of government exercised legislative,
executive and judicial power, with all these bodies subject to the rule of law.
Examples of Check and Balance:

Checks and balances operate throughout the U.S. government, as each branch
exercises certain powers that can be checked by the powers given to the other two
branches.
1. The president (head of the executive branch) serves as commander in chief of the
military forces, but Congress (legislative branch) appropriates funds for the
military and votes to declare war. In addition, the Senate must ratify any peace
treaties.
2. Congress has the power of the purse, as it controls the money used to fund any
executive actions.
3. The president nominates federal officials, but the Senate confirms those nominations.
4. Within the legislative branch, each house of Congress serves as a check on possible
abuses of power by the other. Both the House of Representatives and the Senate have
to pass a bill in the same form for it to become law.
5. Veto power. Once Congress has passed a bill, the president has the power to veto that
bill. In turn, Congress can override a regular presidential veto by a two -thirds vote of
both houses.
6. The Supreme Court and other federal courts (judicial branch) can declare laws or
presidential actions unconstitutional, in a process known as judicial review.
7. In turn, the president checks the judiciary through the power of appointment, which
can be used to change the direction of the federal courts
8. By passing amendments to the Constitution, Congress can effectively check the
decisions of the Supreme Court.
9. Congress (considered the branch of government closest to the people) can impeach
both members of the executive and judicial branches.

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The Separation of Power:

Separation of Power in US Constitution:

2. CHECK AND BALANCE SYSTEM

Examples of Check and Balance:

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