The term separation of powers originated with the Baron de Montesquieu, a French enlightenment writer and John Locke, an English Philosopher. However, the actual separation of powers amongst different branches of government can be traced to ancient Greece (Kelly, 2014). Separation of powers is a political doctrine of constitutional law which creates the division of governmental responsibilities into different branches in order to limit one group form exercising the powers of another. This approach helps to provide for checks and balances (ncsl. org, 2014).
Separation of Powers is part of the Trias Politica principle headed by John Locke and Baron de Montesquieu. John Locke’s theory was of three distinct ruling powers. The first was Legislative power, the second was Executive power and the third was Federative power (plato. stanford. edu, 2010). Baron de Montesquieu’s theory was also of three ruling powers. They were the Executive power, the Legislative power and the judicial power. The United States prefers to use Baron de Montesquieu’s method of separation of powers.
The executive branch is headed by the President and includes the bureaucracy. The legislative branch includes both houses of Congress: the Senate and the House of Representatives. The judicial branch consists of the Supreme Court and the lower federal courts (Kelly, 2014). CHECKS AND BALANCES Executive The executive (president) may veto laws. The executive has the power to wage war at the direction of Congress, who make the rules for the military. The executive can makes declarations and promulgates executive orders. The Executive can influence other branches of its agenda with the State of the Union address.
The executive has the power to appoint judges and executive department heads and has the power to grant pardons to convicted persons, except in cases of impeachment. Legislative The legislative (congress, senate and House of Representatives) has the power to write and enact laws, enact taxes, authorize borrowings and set the budget. The legislative has sole power to declare war and start investigations, especially against the Executive. The senate considers presidential appointments of judges and executive department heads. The senate also ratifies treaties.
The House of Representatives may impeach, and the senate may remove, executive and judicial officers. The legislative has the power to set up federal courts except the Supreme Court, and sets the number of justices on the Supreme Court, and may override presidential vetoes. Judiciary The judiciary power Determines which laws Congress intended to apply to any given case. The judiciary power. It also Determines whether a law is unconstitutional however, this is not a power given in the constitution. It was ‘created’ in Marbury v Madison (1803). Determines how.
Congress meant the law to apply to disputes. The judiciary power determines how a law acts to determine the disposition of prisoners. It determines how a law acts to compel testimony and the production of evidence. Another thing the judiciary power determines is how laws should be interpreted to assure uniform policies in a top-down fashion via the appeals process, 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 in question. ). The judiciary power also polices its own members.
ADVANTAGES OF SEPARATION OF POWERS Separation of powers can potentially ensure that each of the three branches of governance are separated and therefore not able to interfere with one another, providing the ability for each branch to check and balance on the others actions. The separation of powers is also reflected in the fact that certain functions must not be exercised by one and the same person. So for example, the President cannot at the same time be a Member of the National Council. Another advantage of separation of powers in the United States is that it practices pragmatism.
Running a country the size of the United States, with such a diverse population, is much easier to do if power is given to local officials. Likewise, state and local officials are closer to the problems of their areas, so it makes sense for them to choose policies to solve those problems. An advantage of separation of powers under the United States constitution is that it leads to political stability. By removing the national government from some contentious issue areas, federalism allowed the early U. S. government to achieve and maintain stability.
Ensures the separation of powers and prevents tyranny: Even if one person or group took control of all three branches of the federal government, federalism ensures that state governments would still function independently. Federalism, therefore, fulfills the framers’ vision of a governmental structure that ensures liberty. http://americanhistory. about. com/od/usconstitution/g/sep_of_po wers. htm http://www. ncsl. org/research/about-state-legislatures/separation- of-powers-an-overview. aspx http://plato. stanford. edu/entries/locke-political/ http://www. law. cornell. edu/supremecourt/text/5/137.