Separation of Powers Part 1: The Branches of Government

The President is negotiating with Congress on legislation and appointments. Congress is approving nominations and worrying about presidential vetoes. The courts are ruling on the laws passed by Congress and signed by the president. The three branches of government have very distinct roles as set by the founders in the Constitution and interact with each other in specific ways through a system of checks and balances. In this article, we will discuss what the three branches are and what they do. In the next part, we will talk about how each branch checks the other branches’ power.

The idea of separate branches of government was somewhat unique when the Constitution was created. For the most part, nations at the time had either monarchies or a parliamentary system where power is concentrated to one central body. The founders were very concerned about maintaining a republic and not allowing it to fall into a dictatorship thus they wanted to spread the power out. They did this by sharing powers with the states (federalism) and dividing power across three branches of government. The founders were also inspired by enlightenment philosophers, including Montesquieu, whose writings described a system of government where power was shared between a legislative, executive, and judicial branch.

The first branch created in the Constitution is the legislative branch (Article 1). It describes two houses that will be part of the Congress. The first is the House of Representatives where members serve two-year terms, are directly elected by the people, and represent districts based on population as favored by larger states. The second is the Senate where members serve six-year terms and are chosen by state legislators (until 1912). Each state would also be given equal representation in the form of two senators as favored by smaller states. The bodies would check and balance each other as laws would have to be passed by both in order for them to be considered by the president. Each body would also have their own specific powers. Tax laws can only start in the House while the Senate would be tasked with approving judicial and executive nominations as well as treaties. Finally, Congress was given 17 specific powers for which they could legislate over, including the power to declare war despite the president being the Commander-in-Chief. It also gives them the power to create laws deemed “necessary and proper,” also known as “the elastic clause.”

Next is the executive, as described in Article II. The executive, or president, must be at least 35 years of age and a natural born citizen to be elected. The executive serves four-year terms. At the time there was no term-limit but that changed in 1951 with the 22nd Amendment limited the president to two terms or ten years. The Constitution declares the president the “Commander-in-Chief” of the armed forces. It also gives the president the power to make treaties and appoint judges, ambassadors, and advisors with the consent of the Senate. Finally, the president is given the power to sign bills into law or veto them. From time to time, the president is required to give the Congress an update on the state of union. The vice president is also considered to be part of the executive and is entrusted as the president of the Senate, given the power to cast a tie-breaking vote.

Finally, Article III discusses the Judiciary. The Constitution grants this power to a Supreme Court as well as any lower courts that Congress establishes (the federal judicial system is a topic for another day). It establishes that judges will be appointed by the executive and will serve life-time appointments. It also describes where the Supreme Court will have original jurisdiction, meaning when cases are first tried in at the high court, and when it will serve as an appellate or review court after the case has been tried in lower courts. Though the constitution doesn’t specifically state it, the Supreme Court also established the power to determine if laws passed by the other bodies are constitutional (but judicial review is also a topic for another day).

Those are the different powers of the branches. In the next article, we will discover how each was set up to check the power of the other.