Separation of powers

Separation of powers, or “Trias Politica” — a term coined by French political Enlightenment thinker Baron de Montesquieu, is a model for the governance of democratic states. Montesquieu described division of political power between an executive, a legislature, and a judiciary. He based this model on the British constitutional system, in which he perceived a separation of powers between king, Parliament, and the courts of law. Subsequent writers have noted that this was mis- leading, since Great Britain had a very closely connected legislature and executive, with further links to the judiciary (though combined with judicial independence). But in Montesquieu’s time, the political connection between Britain’s Parliament and the king’s Ministry was not as close as it would later become.

All democracies exist with an absolute separation of powers or an absolute lack of separation of powers. Nonetheless, some systems are clearly founded on the principle of separation of powers, while oth- ers are clearly based on a mingling of powers.

Each branch is able to place specified restraints on the powers ex- erted by the other branches. The US system refers to the branches as “branches of government,” while some systems use “government” to describe the executive.

To prevent one branch from becoming supreme, and to induce the branches to cooperate, governance systems employing a separation of powers typically are created with a system of “checks and balanc- es,” a term which, like separation of powers itself, is generally credit- ed to Montesquieu. Checks and balances refers to the various proce- dural rules that allow one branch to limit another, such as the au- thority of the president to veto legislation passed by Congress, or the power of Congress to alter the composition and jurisdiction of the federal courts.

Legislative	Executive	Judicial
writes and enacts laws; enacts taxes, authorizes borrowing, and sets the budget; usually has sole power to declare war; may start investigations, especially against the executive branch; often appoints the heads of the executive branch;	sometimes may veto laws; may refuse to enforce certain laws (risking impeachment by the legislature); may refuse to spend money allocated for certain purposes; wages war (has operational command of the military); makes decrees or declarations (for example, declaring a state of emergency) and promulgates	determines which laws apply to any given case; determines whether a law is unconstitutional; has sole power to interpret the law and to apply it to particular disputes; may nullify laws that conflict with a more important law or constitution; determines the disposition of prisoners; has power to compel testimony and the production of evidence;

Legislative	Executive	Judicial
sometimes appoints judges. ratifies treaties.	lawful regulations and executive orders; often appoints judges; sometimes has power to grant pardons to convicted criminals.	enforces uniform policies in a top-down fashion via the appeals process, but gives discretion in individual cases to low-level judges (the amount of discretion depends upon the standard of review, determined by the type of case in question.); may rule only in cases of an actual dispute brought between actual petitioners; polices its own members; 10. is frequently immune to arbitrary dismissal by other branches.

The theoretical independence of the executive and legislative branches is partly maintained by the fact that they are separately elected and are held directly accountable to the public. There are also judicial prohibitions against certain types of interference in each oth- ers’ affairs. Judicial independence is maintained by life appointments of judges, with voluntary retirement, and a high threshold for remov- al by the legislature. In recent years, there have been accusations that the power to interpret the law is being misused (judicial activism) by some judges in the US.

The legal mechanisms constraining the powers of the three branches depend a great deal on the sentiment of the people. The sys- tem of checks and balances is also self-reinforcing. Potential abuse of power may be deterred, and the legitimacy and sustainability of any power grab is hindered by the ability of the other two branches to take corrective action; though they still must actually do so, there- fore accountability is not automatic. This is intended to reduce oppor- tunities for tyranny.

The press has been described as a “fourth power” because of its considerable influence over public opinion (which in turn affects the outcome of elections), as well as its indirect influence in the branch- es of government by, for example, its support or criticism of pend- ing legislation or policy changes. It has never, however, been a formal branch of government; nor have political philosophers suggested that it become one.

EXERCISES