Separation of Power

Separation of Power in the United States

The doctrine and practice of dividing the powers of government among several coordinate branches to prevent the abusive concentration of power. The distribution of powers embodied in the U.S. Constitution distinguishes functionally between government and people, and between executive, legislative, and judicial branches. While the Constitution creates three separate branches, it assigns them overlapping responsibilities that make them interdependent and that encourage the operation of a checks and balances system. The Congress is assigned the responsibility for passing laws, but these laws must be implemented by the president and the executive branch and can be interpreted, even declared unconstitutional, by the Supreme Court. The president is head of the executive branch of government, but the laws he or she is responsible for implementing and the money necessary for doing so come from the Congress.

The Supreme Court also has the power to declare his or her actions unconstitutional. The framers used the doctrine of checks and balances to protect against absolute power coming to reside in any one of the branches. The doctrine of checks and balances is a device that simultaneously softens and augments separation of powers. Checks and balances soften the separation of powers because they require the concurrence of one branch in the work properly assigned to another branch, and they implement the separation of power because they specify the controls each part of government has over the other parts.

Analysis and Relevance

The principle of separation of power is designed to limit the abusive exercise of governmental authority by partitioning authority to several locations. Coupled with the checks and balances features of American constitutional law, governmental power is decentralized and restricted. This structural distribution of power creates different points of access as each branch tends to respond to different kinds of political stimuli. The key factor, however, is that none of the branches dominates the processes of government for a protracted period of time.

The separation of power may create fragmentation or disunity for government if there exists sufficient inter-branch conflict. Such conflict can often be found when the executive and legislative branches are controlled by different political parties. It has become the function of the courts to umpire the functional lines of separation among the branches and the territorial lines between the federal and state levels of government.

Israel

The question “Where were you born?” would seem unlikely to provoke a high court argument, but it’s part of a dispute over the territorial status of Jerusalem. The Supreme Court considered whether Congress impermissibly intruded upon executive powers by enacting a law that directs the Secretary of State, upon request, to record Israel as the birthplace of an American citizen born in Jerusalem. The Obama administration claims that such a directive oversteps the executive prerogative to conduct diplomatic relations, noting that it had decided against trying to resolve the highly contested issue of whether Jerusalem is part of Israel. The D.C. Circuit declared the statute unconstitutional. (Zivotofsky v. Kerry, 725 F.3d 197 (D.C. Cir. 2013), cert. granted, 134 S.Ct. 1873 (2014).)

Resources

Notes and References

  1. Definition of Separation of Power from the American Law Dictionary, 1991, California

See Also

Separation of Power: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Separation of Power. This part provides references, in relation to Separation of Power, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Separation of Power by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Separation of Power and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Separation of Power or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Separation of Power and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Separation of Power. Finding these decisions can be challenging. In many cases, researchers about Separation of Power should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Separation of Power when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

*This resource guide is updated frequently. However, if you notice something is wrong or not working, or any resources that should be added, please notify us in any of the "Leave a Comment" area.

Leave a Comment