In our previous articles we discussed the concept of separation of power in brief with its history of origin and Montesquieu’s theory. This article speaks about doctrine of separation of power in the U.S.A
In U.S.A and different other Presidential systems, a strict separation is usually a fundamental constitutional principle, where as in India, it is not applied as rigidly as in the USA.
United States Of America
The doctrine of separation of powers and system of checks and balances mainly forms the core of the Constitution of the United States of America. These two have provided a stable structure to the government for over a century. United States of America was the 1st country to have adopted the Doctrine of Separation of Powers and system of checks and balances. This doctrine is usually followed in the Presidential system in a strict sense. In the United States of America, all the three organs of government sit separately.
The framers of the US constitution, while wanting to protect the liberty of individuals through shared governmental powers, gave three assumptions that underline the necessity for separation of powers:
- Human nature is reflected in the government that is run by them;
- Acting ambitiously in self interest is a human nature; and
- When such self interested authority has concentration of power in his hands, he has the ability to oppress his constituents.
In the Federalist Papers, James Madison defended these beliefs that “ The accumulation of all the powers of legislative, executive and judiciary in same hands, may justly be pronounced the very definition of tyranny.”
Thus, the framers of the US constitution developed a two-point rule for how the government would be constituted, which later became the Constitution of USA. The Constitution of USA comprises of seven articles out of which the first 3 articles clearly embody the doctrine of separation of powers wherein the federal government is divided into three main branches mentioned below.
Legislative, Executive and Judiciary
“Article I deals with the Legislative, wherein the legislative powers shall be vested in the Congress and it shall consist of the Senate and the House of Representatives. This article describes the Congress, as the legislative branch of the federal government.
Under section 8 of this article, powers that are delegated to the Congress are described. Under the non-delegation doctrine, Congress may not delegate its lawmaking responsibilities to any other agency.
“Article II talks about the Executive, wherein the President of USA shall be the head of the Executive and Executive power is vested, with exceptions and qualifications, in the president under Article II, Section 1. This article also describes in brief the Office, the duties and also qualifications of not only the President of the USA, but also his Vice-President who is elected for the same term as that of the President.”
By law the president becomes the “Commander in Chief of the Army and Navy, Militia of several states when called into service, has power to make treaties and appointments to office — …with the Advice and Consent of the Senate– receive Ambassadors and Public Ministers, and “…take care that the laws be faithfully executed” (Section 3.)” The president’s responsibility is to execute whatever instructions he is given by the Congress. Congress often writes legislation to restrain executive officials to the performance of their duties, as authorised by the laws Congress passes.
“Article III deals with the Judiciary, which describes the court system. It states that the judicial system shall consist of one Supreme Court and other federal courts that shall handle all judicial matters. This article describes the types of cases that the courts shall take up as original jurisdiction. Section 1 under this article vests judicial power— the power to decide cases and controversies — is vested in the Supreme Court and federal courts of the USA and along with it the authority to interpret and apply the laws.”
Courts exercising the judicial power are called “constitutional courts.” Congress may establish “legislative courts,” which do not take the form of judicial agencies or commissions, whose members do not have the same security of tenure or compensation as the constitutional court judges. Legislative courts may not exercise the judicial power of the United States. LEADING CASE LAW: MARBURY v. MADISON
