Separation Of The Legislative And Executive Powers example essay topic

A significant aspect of the American Political System, and one I consider the most important, is the system of checks and balances. This concept is rooted in the classical theory of separation of powers, by which the legislative, executive, and judicial powers of government were vested in three different units. The purpose of this, and of the later development of checks and balances, was to ensure that governmental power would not be used in an abusive manner. Classical political philosophers from Aristotle onward favored a "mixed" government combining the elements of monarchy, aristocracy, and democracy. The English theorist James Harrington in his "Oceana" (1656) derived a theory akin to separation of powers from the old idea of mixed government. Later, John Locke, in his second treatise "Of Civil Government" (1690), urged that the best way to avoid a perverted government was to provide constitutionally for separation of the legislative and executive powers.

Montesquieu, in his "Spirit of the Laws" (1748), added the third power of the judiciary to this concept, and the modern expression of separation of powers came into being. The framers of the U.S. Constitution were strongly influenced by the advantages of separation of powers and of checks and balances. These theories had been in practice in the governments of the American colonies, and they underlie the fundamental laws of the United States. The Constitution distinctly separates the legislative, executive, and judicial branches of government.

The federal system adds to the checking because power is divided constitutionally between the central government and the states. Further, the constitutional provisions for direct election of members of both houses of Congress and virtually direct election of the president puts two branches of the government under check of the electorate. However, procedural requirements in the Constitution ensure that even measures popular with the voters cannot be adopted without presumably adequate consideration. The operation of checks and balances in the federal government is spelled out in the Constitution. The two houses of Congress legislate separately, and this legislation is subject to presidential veto; however, Congress, by a two thirds vote of each house, can override a presidential veto. The judicial branch, in determining cases, may declare legislation unconstitutional, but the judiciary itself is subject to executive and legislative checking through the appointment of judges and the passage of legislation governing organization, procedure, and jurisdiction of the courts.

There also is a possibility of amendment of the Constitution to reverse judicial determinations. Other constitutional checks are the possible legislative removal of the president and of judges by impeachment and approval by the Senate of treaties and major presidential appointments. Checks and balances can be applied to many political and economical processes, like for example the elections. A good system, with checks and balances, appropriate to the political and economic conditions of a country reduces the possibilities for electoral fraud and increases the chances that corrupt activities will be detected.

A credible election process encourages participation and fosters a healthy electoral climate. The separation and limitation of powers can be built into the legal framework for elections. For example, the law can separate the administrative aspects of elections from the criminal enforcement aspects, as well as separating prosecution from the court which will pass judgment. Although the system of checks and balances functions in quite a few countries, it appears to me that the best known system of checks and balances operates in the U.S. government under provisions of the federal Constitution.

In principle, the U.S. is a democratic republic. The Americans govern themselves by choosing their leaders by secret ballot, and these leaders in turn make the rules. Americans started "governing themselves" as a nation on July 4th, 1776, when the Declaration of Independence was signed in Philadelphia by representatives of the thirteen British colonies in North America. These states joined together formally in 1781 under a first "constitution", the Articles of Confederation. That loose union of the states was replaced by the Constitution of the U.S. in 1789. This document (amended 26 times) is still the political foundation of the U.S. Being based on a written constitution, the U.S. government is committed in principle to the rule of law.

To guarantee the rights of free speech, a free press, freedom of religion etc. the first ten amendments, called the "Bill of Rights" were adopted in 1791. There are three levels of government in the U.S. Local government (city / county ), state government, and federal government. Many of the concepts of the U.S. government can be traced to progressive thinkers of the seventeenth and eighteenth centuries, mentioned at the very beginning of the essay, e.g. Locke, Spinoza, Blackstone, and Montesquieu. Out of some of their thoughts the U.S. government system with the three branches were made: a legislative branch (Congress), an Executive branch (President), and a judicial branch (Supreme Court). The Constitution is most of all a document of checks and balances: among the three branches of the federal government; and between the levels of government, nation and state. The legislative branch (Congress) that has the power to make laws valid for the whole country.

Powers like the regulation of taxes, regulation of commerce between the states and with foreign countries, the power to declare war, and the power to impeach the President are some of the other matters the legislative branch have to deal with. Congress has two chambers (or "houses"): the Senate and the House of Representatives ("the house"). The Senate consists of one hundred senators: Two senators from each of the fifty states. The senators serve for six-year terms.

One third are elected every two years. The Senate's area of responsibility consists of to approve major presidential appointments, and approve major foreign policy steps. The House of Representatives has their 435 members (called "congress-men / women /people / persons ") chosen from districts (the U.S. is divided into 435 districts containing some five hundred thousand inhabitants). The districts are reapportioned every ten years. The representatives serve in two-year terms, and all of them are elected every two years.

All tax legislation must start in the House. Executive power is vested in the office of the President of the U.S. The President has the dual role of being the chief of state and the head of government. The President is also commander in chief of the armed forces; he issues executive orders, and appoints Supreme Court justices (with senate approval). The president is also called "the chief legislator" because he / she indirectly proposes many bills, considers all bills from Congress and signs them into law or vetoes them.

The President is elected by "the whole country" for four years. He / she is assisted by the Cabinet and its departments, the White House staff, and some independent administrative agencies. The Supreme Court: "The Judicial power of the U.S. shall be vested in one supreme court, and in such inferior courts as the Congress from time to time may ordain an establish". (The Constitution states). All nine federal judges are appointed by the President and serve "during good behavior", usually meaning for life. The judges cannot be removed from office except for criminal behavior or malfeasance.

This makes them less vulnerable to political pressure than they would be if they had to depend upon politicians or the voters for new mandates. The main feature of the independent role for the courts lies in their power to interpret the Constitution. They review the "constitutionality" of laws and executive orders. The number of justices is decided by Congress, and they can be impeached by congress. There are also Inferior Courts: One hundred District Courts and thirteen Courts of Appeals, all of them are created by Congress, with judges appointed by the President (with Senate approval). All federal courts hear cases involving federal law, involving state laws whose constitutionally is changed, involving the U.S., involving two separate states, and involving citizens of different states.

Having presented the three branches of U.S. government in broad strokes, I will now turn in to how the separation of powers is designed to work. The system of government is commonly referred to as "the system of checks and balances". It is designed to work so as to avoid placing too much power in too few hands. The most powerful tool Congress has (most important "checks" on the power of the President) is the power to appropriate money (set aside money for some specific purpose). After both houses of Congress have approved the budget, it is sent over to the President.

He / she has to sign the bill into law. Another major check on the power of the President is the Senate's power of advice and consent. The President is obliged to ask for the advice and consent of the Senate on all major appointments (e.g. members of the president's Cabinet, new justices of the Supreme Court, other federal judges, and members of administrative or regulatory agencies) and major foreign policy decisions he / she makes (e.g. when it concerns treaties). To declare war, the President must turn to both houses of Congress for their approval. The president's major countervailing power in the legislative process is the power of the veto.

The President must sign any proposed legislation before it becomes law; his failure or refusal to do so can thus stop any bill. If the President returns a bill to Congress with a veto on it, the legislature has the power to override the President's veto by re-passing the legislation by a two-thirds majority in both houses. Then the bill becomes law without the President's signature. (If the President does not wish to be associated with a bill but does not feel that it is worthwhile to prevent it from becoming law, he can demonstrate this by using a so-called pocket veto: he / she simply lets it lie on his / her desk for ten days without signing it or vetoing it, in which case it becomes law without the President's signature.) The Congress has the power to impeach the President.

(A complex matter that involves the House of Representatives and its Judicial Committee or a special ad hoc committee, the Senate, the Chief Justice of the U.S. (the Supreme Court) Turning to the relationship between Congress and the Supreme Court, we find that Congress has the power to determine the construction of the Court (and its inferior courts). As mentioned before, the Congress has some say in whom will sit on the Supreme Court bench, in that nominations made by the President must be approved by the Senate. I have already touched the "checks" between the Supreme Court and the President. Just as the President may be impeached by the Congress, so may justices of the Supreme Court (indeed, all civil officials, except members of Congress) be removed from office by impeachment. The single countervailing "arrow" of power aimed at Congress by the Supreme Court is the comprehensive power of judicial review (as mentioned earlier on in the paragraph about the Supreme Court). This review of laws by the courts is not an "automatic" part of the legislative process, but the specific laws have to be brought before the courts for a decision about their constitutionality.

If Congress finds that the Supreme Court has interpreted the Constitution in a way which disagrees with its own fundamental views (or for any other reason), then Congress can initiate the process of amending the Constitution. A majority of two thirds of both houses of Congress must pass the amendment. As soon as three quarters of the states (thirty-eight of them) have ratified the proposed amendment it becomes a part of the Constitution. In all these ways the Constitution checks the unrestricted exercise of power by each branch and balances of the powers of the branches against each other. The Framers, when giving a new shape to the national government, based on their own experience as far as the structure of the legislative powers go.

They had access to every level of the western tradition of mixed government theory. The shape and nature of the government proposed by the Framers, as it was mentioned before, was also heavily influenced by ancient theories, among which there was the theory of a Greek philosopher Polybius, that clearly outlined the risks and possibly the damages that can affect a country ruled by an undemocratic government. Polybius distinguished three different forms of government: monarchy (rule by the one), aristocracy (rule by the few), and democracy (rule by the many). According to him, monarchy, inevitably degrades into tyranny. Tyranny is then replaced by aristocracy, which in turn degrades into oligarchy. Oligarchy then is overthrown by democracy, which ultimately falls into its own corresponding distortion, mob-rule (or ochlocracy).

In Polybius' analysis, the cycle then starts up again (monarchy, aristocracy, and democracy) since anarchy inevitably creates a void that some new demagogue will fill. This simple theory proved to be true in some European countries and the Framers, having witnessed the French Revolution, made an attempt to prevent a similar chain of events in the United States. Although an ideal political system does not exist, democracy seems to be an ultimate one. Years of experience of many countries and nations shows that a democratic system based on the separation of powers is stable and safe.

To sum up, there is a number of reasons why I consider the system of checks and balances a key issue in the American democracy. The system proved to be the right one, functioning nearly flawlessly for so many years. Its roots can be found in the works of great political philosophers, and its beginnings can be traced in the ancient centuries. Nowadays, most national, state, and local governments have at least the mechanics of a system of checks and balances. Even dictatorial governments, otherwise scorning restraints on powers, provide internal checks to insure proper performance by governmental agencies and to fix responsibility. The division of state governments into three branches with some amount of control over each other functions in most contemporary countries, including Poland.