Separation of Powers & Checks and Balances

The founders didn’t trust concentrated power. They designed a system to prevent it.

The Core Principle

Separation of powers means dividing government into distinct branches, each with its own authority. Checks and balances means giving each branch tools to limit the others.

These aren’t the same thing. Separation of powers divides authority. Checks and balances shares it. The Constitution does both.

Federalist No. 51: The Logic

Madison explains the theory in Federalist No. 51:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

Since neither condition holds, we need structure:

“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”

Translation: Give each branch a personal stake in defending its own power. Politicians will protect their institution because doing so protects their own authority. Self-interest serves the public good.

The Three Branches

Legislative Branch (Article I)

Congress makes laws. It’s bicameral:

• House of Representatives: 435 members, proportional to population, two-year terms. All revenue bills must originate here. Has sole power of impeachment.

• Senate: 100 members, two per state, six-year terms (staggered so one-third are elected every two years). Confirms appointments, ratifies treaties, conducts impeachment trials.

Congress has enumerated powers (listed in the Constitution) plus implied powers (derived from the necessary and proper clause).

Executive Branch (Article II)

The President enforces laws. Key powers:

• Commander in chief of armed forces
• Appoints federal judges and executive officials (with Senate confirmation)
• Makes treaties (with Senate ratification)
• Grants pardons
• Vetoes legislation

The president is supported by the Cabinet (heads of executive departments), the Executive Office of the President, and the vast federal bureaucracy.

Judicial Branch (Article III)

The Courts interpret laws. The Supreme Court is the highest court. Below it are Courts of Appeals and District Courts (created by Congress).

Federal judges serve for life during “good behavior,” insulating them from political pressure.

The key judicial power, judicial review (the power to declare laws unconstitutional), isn’t explicitly in the Constitution. It was established by Marbury v. Madison (1803).

The Checks in Action

Each branch can limit the others:

Congress Checks the President

• Override vetoes (two-thirds of both houses)
• Control appropriations (power of the purse)
• Confirm appointments
• Ratify treaties
• Impeach and remove from office
• Declare war

Congress Checks the Courts

• Confirm judicial appointments
• Set jurisdiction of lower courts
• Impeach federal judges
• Propose constitutional amendments to override decisions
• Control court budgets

President Checks Congress

• Veto legislation
• Pocket veto (if Congress adjourns within 10 days of sending a bill, presidential inaction kills it)
• Call special sessions
• Recommend legislation (bully pulpit)

President Checks the Courts

• Appoint judges
• Grant pardons
• Influence through the Department of Justice

Courts Check Congress

• Declare laws unconstitutional

Courts Check the President

• Declare executive actions unconstitutional
• Issue injunctions against executive branch

Impeachment: The Ultimate Check

Impeachment is the process for removing federal officials (including the president) for “high crimes and misdemeanors.”

Process:

1. House investigates and votes articles of impeachment (simple majority)
2. Senate conducts trial, presided over by Chief Justice for presidential impeachments
3. Conviction requires two-thirds of Senate
4. Penalty is removal from office (and potentially disqualification from future office)

Three presidents have been impeached: Andrew Johnson (1868), Bill Clinton (1998), and Donald Trump (2019, 2021). None were convicted.

Access Points

Separation of powers creates multiple “access points” for citizens and groups to influence policy:

• Can’t get Congress to act? Try the executive branch.
• Executive agency unresponsive? Sue in court.
• Courts rule against you? Lobby for legislation.
• Legislation fails? Seek a constitutional amendment.

This disperses power and creates opportunities for influence, but it also creates opportunities for blocking action. American government is designed for gridlock.

Historical Evolution

Power has shifted between branches over time:

Congressional dominance (1789-1930s): Congress was the primary policymaking body for most of American history. Presidents were relatively weak outside wartime.

Presidential ascendancy (1930s-present): The New Deal, World War II, the Cold War, and the modern administrative state all expanded executive power. Presidents now set the agenda.

Judicial activism: The Supreme Court has become more willing to strike down laws, especially since the Warren Court (1950s-60s).

Bureaucratic growth: The federal bureaucracy (part of the executive branch) now makes much policy through regulations, shifting power from Congress.

Contemporary Debates

Separation of powers generates ongoing controversies:

Executive orders: Presidents increasingly use executive orders to make policy without Congress. Critics say this usurps legislative power.

Congressional gridlock: When Congress can’t act, presidents and agencies fill the vacuum. Some see this as necessary; others see it as unconstitutional.

The administrative state: Unelected bureaucrats make binding rules. Is this an unconstitutional delegation of legislative power? Or necessary expertise?

Judicial review: Unelected judges override elected officials. Is this essential protection against majority tyranny? Or is it countermajoritarian and undemocratic?

Federalist No. 70: The Case for Energy

While Federalist No. 51 emphasizes dividing power, Federalist No. 70 (Hamilton) argues for a strong executive:

“Energy in the Executive is a leading character in the definition of good government.”

A single executive (rather than a committee) provides:

• Decision: One person can act decisively
• Activity: Quick response to crises
• Secrecy: Confidential diplomacy and intelligence
• Dispatch: Speed in execution

The Constitution tries to have it both ways: a president strong enough to act but checked enough not to become a tyrant.

The Takeaway

Separation of powers is not just a structure. It’s a philosophy: power corrupts, so divide it. Ambition is inevitable, so channel it.

The system creates inefficiency by design. Laws are hard to pass. Policies zigzag as control shifts between branches and parties. This frustrates reformers but protects against rapid, potentially dangerous change.

Understanding how the branches interact, check each other, and compete for power is essential to understanding American government. Every policy debate, every court case, every presidential action occurs within this framework of divided and shared power.