Separation of Powers

When some of the original colonists became unhappy with the way Great Britain's King George III governed the colonies, they decided to form a new nation. Later, when it came time to figure out how it should be governed, their main concern was to prevent any single person, like the King, or any group of persons from controlling the entire government.

Ultimately, after a lot of debate, the nation's founders decided on a form of government with "checks and balances." The power of the federal government is divided among arms or "branches." Each branch has its own jobs and powers, and no branch can use another branch's powers. In other words, there's a "separation of powers" in the federal government. In addition, each branch can limit some of the powers of the other branches.

The Branches

The US Constitution sets out the structure and powers of the federal government. There are three separate but equal branches of the government:

  • Article I creates the Legislative Branch, that is, the Congress, which is made up of the House of Representatives and the Senate. This branch is in charge of making the various laws of the land
  • Article II creates the Executive Branch, which includes the Office of the President of the United States. This Branch's job is to enforce the US Constitution and the laws created or "enacted" by Congress
  • Article III creates the Judicial Branch, namely the court system, and specifically creates the Supreme Court of the United States (the "Court"). The courts are in charge of interpreting and applying the laws to settle legal disputes

Separation and Checks and Balances

Some examples and illustrations best explain how the three branches work separately and keep any one branch from gaining too much power:

  • Congress can't tell the Court how to decide a particular case. But, if Congress doesn't like a decision by the Court, it can change the law and essentially change the decision. For example, after the Court decided that burning the US Flag is protected by the First Amendment, Congress could amend the Constitution to make flag burning illegal
  • The Court can't tell Congress what laws to write or how to write them. However, the Court can invalidate any federal law that it thinks violates the US Constitution. For example, the Court has invalidated two federal laws that barred flag burning because they violated the First Amendment's guarantee of freedom of speech
  • It's the President's job to nominate persons to fill vacant, high-level positions in the government (like ambassadors and federal judges, including Supreme Court justices), but his appointments need to be approved by two-thirds of the Senate
  • The President is commander and chief of the US military, but only Congress can declare war
  • The President must come up with a budget for how the federal government will spend taxpayer money, but the budget has to approved by Congress
  • The President can "veto" or reject any laws that Congress sends to him for approval; the Court can invalidate as unconstitutional any law written by Congress and any "executive order" issued by the President. (Generally, an "executive order" is an order or directive from the President to a government agency giving it guidance about how to handle a particular problem
  • The President must, "from time to time," appear before both the House and the Senate and talk about the "state of the union"
  • The federal courts can convict persons for breaking federal laws, but the President may grant "pardons" to such persons as he sees fit

Questions for Your Attorney

  • How do I ask the President for a pardon?
  • Since Congress hasn't declared war, isn't it against the law to send our troops into battle overseas?
  • Congress is considering impeaching a federal judge of a court in my state. If she's actually removed from office, can the President pardon her?
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