Separation of powers in the US and UK (Summary of the website

constitution.com)
Constitutional Topic: Separation of Powers

The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into
topics than can be provided on the Glossary Page or in the FAQ pages. This Topic Page concerns
the Separation of Powers. The concept of Separation of Powers is embodied in the Constitution in
the 1st Article, in the 2nd Article, and in the 3rd Article. Another Topics Page, on The Government
provides details about the make-up of the various branches and may also be of use.

Primary sources for this topic page are Comparative Politics by Gregory Mahler (Schenkman
Publishing, 1983) and Comparative Politics by Gregory Mahler (Prentice Hall, 2000). Individual
pages from Wikipedia and Canada in the Making were also helpful in keeping this page up to date.

The American Example

Historical Examples

The British Example

The French Example

The Canadian Example

The Mexican Example

Conclusions

The American Example

The United States Constitution is deliberately inefficient.

The Separation of Powers devised by the framers of the Constitution was designed to do one
primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the
framers shied away from giving any branch of the new government too much power. The
separation of powers provides a system of shared power known as Checks and Balances.

Three branches are created in the Constitution. The Legislative, composed of the House and
Senate, is set up in Article 1. The Executive, composed of the President, Vice-President, and the
Departments, is set up in Article 2. The Judicial, composed of the federal courts and the Supreme
Court, is set up in Article 3.
Each of these branches has certain powers, and each of these powers is limited, or checked, by
another branch.

For example, the President appoints judges and departmental secretaries. But these appointments
must be approved by the Senate. The Congress can pass a law, but the President can veto it. The
Supreme Court can rule a law to be unconstitutional, but the Congress, with the States, can amend
the Constitution.

All of these checks and balances, however, are inefficient. But that's by design rather than by
accident. By forcing the various branches to be accountable to the others, no one branch can
usurp enough power to become dominant.

The following are the powers of the Executive: veto power over all bills; appointment of judges
and other officials; makes treaties; ensures all laws are carried out; commander in chief of the
military; pardon power. The checks can be found on the Checks and Balances Page.

The following are the powers of the Legislature: Passes all federal laws; establishes all lower
federal courts; can override a Presidential veto; can impeach the President. The checks can be
found on the Checks and Balances Page.

The following are the powers of the Judiciary: the power to try federal cases and interpret the laws
of the nation in those cases; the power to declare any law or executive act unconstitutional. The
checks can be found on the Checks and Balances Page.

Historical Examples

Historically, the concept of Separation of Powers dates back as far as ancient Greece. The concepts
were refined by contemporaries of the Framers, and those refinements influenced the
establishment of the three branches in the Constitution.

Aristotle favored a mixed government composed of monarchy, aristocracy, and democracy, seeing
none as ideal, but a mix of the three useful by combining the best aspects of each. In his 1656
Oceana, James Harrington brought these ideas up-to-date and proposed systems based on the
separation of power. John Locke, in his 1690 Civil Government, second treatise, separated the
powers into an executive and a legislature. Montesquieu's 1748 Spirit of the Laws expanded on
Locke, adding a judiciary. The framers of the Constitution took all of these ideas and converted the
theories into practical applications.

When discussing Separation of Power, is it helpful to contrast the American System to the
governments of other nations. This list below is far from a representative sample of nations or
systems. The United States, Britain, France, Canada, and Mexico are actually more similar than
they are different, especially when the whole range of nations is taken into account. However,
sometimes the smaller differences between similar systems can be interesting and illustrative. It is
left to the reader to conduct studies of more disparate systems.

The British Example

The British Parliamentary system works like this: There are two houses of the legislature. The
upper house, the House of Lords, has traditionally consisted of the nobility of Britain: dukes, earls,
viscounts, barons, and bishops. As of 2005, the very existence of the House of Lords is in question.
There are some calling for its abolition, but a combination elected/lifetime appointment system
seems more likely. A popular proposal calls for 80% of the body to be elected and the name to
change to the "Second Chamber." In 1999, the House of Lords had over 1300 members. Today,
there are just over 700 members. The House of Lords serves a judicial function as a court of final
appeal, but as a legislative body, is widely regarded as ineffectual. It can delay passage of bills
issued by the lower house, though it cannot veto them.

The lower house, the House of Commons, consists of MPs (Members of Parliament) elected from
one of 646 electoral districts. In the Commons, majority rules. The majority party makes all the
laws. The minority has little voice. The Prime Minister, Britain's closest approximation of the
American President, is an MP chosen by the majority. The judiciary has no power of review as in
the U.S. Since Britain has no formal, written constitution, no law can be unconstitutional.

The head of state, analogous still with the American President, is the monarch (King or Queen).
The monarch must approve of all bills, though the process today is little more than a rubber
stamp. The Speaker of the House of Commons, elected by the House, acts as the referee in debate
between the majority and the minority. The MPs in the House of Commons sit for five years, or
until the monarch (at the Prime Minister's behest) dissolves Parliament and calls for new elections.
The Prime Minister also heads the Cabinet.

In Britain, the majority party in the House of Commons holds all of the power. The judiciary has no
power of review. The House of Lords holds little more than delaying powers. By tradition, the
monarch does not veto bills passed by the Parliament. And the de facto head of state, the Prime
Minister, is a member of the Commons.

Conclusions

Is the American system superior to any of these, or to any other, system of government? That
depends on where you sit. The French and the British might scoff at the fact that our head of state,
the President, has no power to make laws. They might cringe at the thought that judges can
render the will of the people, in the form of a duly passed law, null and void. Canadians might
think that state powers ought to be enumerated; Mexicans might marvel at the longevity of some
career American politicians.

Americans might look with amusement at the institution of the British monarchy, and its
continued hold, if only on paper, on Canada. Americans might cringe at the British thought of
majority rule with no written constitution to be used as a guide or rule book. We might worry that
the French Presidency has the potential to turn tyrannical by the misuse of emergency powers. We
might worry that a Mexican judiciary, without lifetime tenure or a solid stare decisis system might
lead to incoherent judicial policy.

But recall that each of these nations, and the hundred others in this world, have political and social
traditions that sometimes date back a thousand years. Despite what Americans might think are
odd institutions and traditions in France, Britain, Canada, Mexico, and elsewhere, these are all
prosperous nations. The systems work in the context of each nation, even if the details could not
work in some others.

Constitutional Topic: Checks and Balances

The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into
topics than can be provided on the Glossary Page or in the FAQ pages. This Topic Page concerns
Constitutional Checks and Balances. The entire Constitution, especially Articles 1, 2, and 3.

Source material for this topic page include the Constitution, Government by the People by James
Burns, J.W. Peltason, and Thomas Cronin (Prentice-Hall, Englewood Cliffs, NJ, 1984),
and Constitutional Law by Daniel Hall (Lawyers Cooperative Publishing, Albany, NY, 1997).
The American constitutional system includes a notion known as the Separation of Powers. In this
system, several branches of government are created and power is shared between them. At the
same time, the powers of one branch can be challenged by another branch. This is what the
system of checks and balances is all about.

There are three branches in the United States government as established by the Constitution.
First, the Legislative branch makes the law. Second, the Executive branch executes the law. Last,
the Judicial branch interprets the law. Each branch has an effect on the other.

Legislative Branch

 Checks on the Executive

o Impeachment power (House)

o Trial of impeachments (Senate)

o Selection of the President (House) and Vice President (Senate) in the case of no
majority of electoral votes

o May override Presidential vetoes

o Senate approves departmental appointments

o Senate approves treaties and ambassadors

o Approval of replacement Vice President

o Power to declare war

o Power to enact taxes and allocate funds

o President must, from time-to-time, deliver a State of the Union address

 Checks on the Judiciary

o Senate approves federal judges

o Impeachment power (House)

o Trial of impeachments (Senate)

o Power to initiate constitutional amendments

o Power to set courts inferior to the Supreme Court

o Power to set jurisdiction of courts

o Power to alter the size of the Supreme Court

 Checks on the Legislature - because it is bicameral, the Legislative branch has a degree of
self-checking.

o Bills must be passed by both houses of Congress

 o House must originate revenue bills

o Neither house may adjourn for more than three days without the consent of the
other house

o All journals are to be published

Executive Branch

 Checks on the Legislature

o Veto power

o Vice President is President of the Senate

o Commander in chief of the military

o Recess appointments

o Emergency calling into session of one or both houses of Congress

o May force adjournment when both houses cannot agree on adjournment

o Compensation cannot be diminished

 Checks on the Judiciary

o Power to appoint judges

o Pardon power

 Checks on the Executive

o Vice President and Cabinet can vote that the President is unable to discharge his
duties

Judicial Branch

 Checks on the Legislature

o Judicial review

o Seats are held on good behavior

o Compensation cannot be diminished

 Checks on the Executive

o Judicial review

o Chief Justice sits as President of the Senate during presidential impeachment

SEPARATION OF POWERS AND CHECKS AND BALANCES

The Constitution nowhere contains an express injunction to preserve the boundaries of the three
broad powers it grants, nor does it expressly enjoin maintenance of a system of checks and
balances. Yet, it does grant to three separate branches the powers to legislate, to execute, and to
adjudicate, and it provides throughout the document the means by which each of the branches
could resist the blandishments and incursions of the others. The Framers drew up our basic
charter against a background rich in the theorizing of scholars and statesmen regarding the proper
ordering in a system of government of conferring sufficient power to govern while withholding the
ability to abridge the liberties of the governed.1

The Theory Elaborated and Implemented

When the colonies separated from Great Britain following the Revolution, the framers of their
constitutions were imbued with the profound tradition of separation of powers, and they freely
and expressly embodied the principle in their charters.2 The theory of checks and balances,
however, was not favored, because it was drawn from Great Britain, and, as a consequence,
violations of the separation-of-powers doctrine by the legislatures of the states were
commonplace prior to the convening of the Convention.3 Theory as much as experience guided
the Framers in the summer of 1787.4

The doctrine of separation of powers, as implemented in drafting the Constitution, was based on
several generally held principles: the separation of government into three branches, legislative,
executive, and judicial; the conception that each branch performs unique and identifiable
functions that are appropriate to each; and the limitation of the personnel of each branch to that
branch, so that no one person or group should be able to serve in more than one branch
simultaneously. To a great extent, the Constitution effectuated these principles, but critics
objected to what they regarded as a curious intermixture of functions, in, for example, the veto
power of the President over legislation and to the role of the Senate in the appointment of
executive officers and judges and in the treaty-making process. It was to these objections that
Madison turned in a powerful series of essays.5

Madison recurred to “the celebrated” Montesquieu, the “oracle who is always consulted,” to
disprove the contentions of the critics. “[T]his essential precaution in favor of liberty,” that is, the
separation of the three great functions of government, had been achieved, but the doctrine did
not demand rigid separation. Montesquieu and other theorists “did not mean that these
departments ought to have no partial agency in, or control over, the acts of each other,” but
rather liberty was endangered “where the whole power of one department is exercised by the
same hands which possess the whole power of another department.”6 That the doctrine did not
demand absolute separation provided the basis for preservation of separation of powers in action.
Neither sharply drawn demarcations of institutional boundaries nor appeals to the electorate were
sufficient.7 Instead, the security against concentration of powers “consists in giving to those who
administer each department the necessary constitutional means and personal motives to resist
encroachments of the others.” Thus, “[a]mbition must be made to counteract ambition. The
interest of the man must be connected with the constitutional rights of the place.”8

Institutional devices to achieve these principles pervade the Constitution. Bicameralism reduces
legislative predominance, while the presidential veto gives to the President a means of defending
his priorities and preventing congressional overreaching. The Senate’s role in appointments and
treaties checks the President. The courts are assured independence through good-behavior tenure
and security of compensation, and the judges through judicial review will check the other two
branches. The impeachment power gives to Congress the authority to root out corruption and
abuse of power in the other two branches. And so on.

Judicial Enforcement

Throughout much of our history, the “political branches” have contended between themselves in
application of the separation-of-powers doctrine. Many notable political disputes turned on
questions involving the doctrine. Because the doctrines of separation of powers and of checks and
balances require both separation and intermixture,9 the role of the Supreme Court in policing the
maintenance of the two doctrines is problematic at best. Indeed, it is only in recent decades that
cases involving the doctrines have regularly been decided by the Court. Previously, informed
understandings of the principles have underlain judicial construction of particular clauses or
guided formulation of constitutional common law. That is, the nondelegation doctrine was from
the beginning suffused with a separation-of-powers premise,10 and the effective demise of the
doctrine as a judicially enforceable construct reflects the Court’s inability to give any meaningful
content to it.11 On the other hand, periodically, the Court has taken a strong separation position
on behalf of the President, sometimes unsuccessfully12 and sometimes successfully.

Following a lengthy period of relative inattention to separation of powers issues, the Court since
197613 has recurred to the doctrine in numerous cases, and the result has been a substantial
curtailing of congressional discretion to structure the National Government. Thus, the Court has
interposed constitutional barriers to a congressional scheme to provide for a relatively automatic
deficit-reduction process because of the critical involvement of an officer with significant
legislative ties,14 to the practice set out in more than 200 congressional enactments establishing a
veto of executive actions,15 and to the vesting of broad judicial powers to handle bankruptcy
cases in officers not possessing security of tenure and salary.16 On the other hand, the highly
debated establishment by Congress of a process by which independent special prosecutors could
be established to investigate and prosecute cases of alleged corruption in the Executive Branch
was sustained by the Court in a opinion that may presage a judicial approach in separation of
powers cases more accepting of some blending of functions at the federal level.17
Important as the results were in this series of cases, the development of two separate and
inconsistent doctrinal approaches to separation of powers issues occasioned the greatest amount
of commentary. The existence of the two approaches, which could apparently be employed in the
discretion of the Justices, made difficult the prediction of the outcomes of differences over
proposals and alternatives in governmental policy. Significantly, however, it appeared that the
Court most often used a more strict analysis in cases in which infringements of executive powers
were alleged and a less strict analysis when the powers of the other two branches were
concerned. The special prosecutor decision, followed by the decision sustaining the Sentencing
Commission, may signal the adoption of a single analysis, the less strict analysis, for all separation
of power cases or it may turn out to be but an exception to the Court’s dual doctrinal approach.18

Although the two doctrines have been variously characterized, the names generally attached to
them have been “formalist,” applied to the more strict line, and “functional,” applied to the less
strict. The formalist approach emphasizes the necessity to maintain three distinct branches of
government through the drawing of bright lines demarcating the three branches from each other
determined by the differences among legislating, executing, and adjudicating.19 The functional
approach emphasizes the core functions of each branch and asks whether the challenged action
threatens the essential attributes of the legislative, executive, or judicial function or functions.
Under this approach, there is considerable flexibility in the moving branch, usually Congress acting
to make structural or institutional change, if there is little significant risk of impairment of a core
function or in the case of such a risk if there is a compelling reason for the action.20

Chadha used the formalist approach to invalidate the legislative veto device by which Congress
could set aside a determination by the Attorney General, pursuant to a delegation from Congress,
to suspend deportation of an alien. Central to the decision were two conceptual premises. First,
the action Congress had taken was legislative, because it had the purpose and effect of altering the
legal rights, duties, and relations of persons outside the Legislative Branch, and thus Congress had
to comply with the bicameralism and presentment requirements of the Constitution.21 Second,
the Attorney General was performing an executive function in implementing the delegation from
Congress, and the legislative veto was an impermissible interference in the execution of the laws.
Congress could act only by legislating, by changing the terms of its delegation.22 In Bowsher, the
Court held that Congress could not vest even part of the execution of the laws in an officer, the
Comptroller General, who was subject to removal by Congress because to do so would enable
Congress to play a role in the execution of the laws. Congress could act only by passing other
laws.23

On the same day that Bowsher was decided through a formalist analysis, the Court in Schor used
the less strict, functional approach in resolving a challenge to the power of a regulatory agency to
adjudicate a state common-law issue—the very kind of issue that Northern Pipeline, in a formalist
plurality opinion with a more limited concurrence, had denied to a non-Article III bankruptcy
court.24 Sustaining the agency’s power, the Court emphasized “the principle that ‘practical
attention to substance rather than doctrinaire reliance on formal categories should inform
application of Article III.’ ”25 It held that, in evaluating such a separation of powers challenge, the
Court had to consider the extent to which the “essential attributes of judicial power” were
reserved to Article III courts and conversely the extent to which the non-Article III entity exercised
the jurisdiction and powers normally vested only in Article III courts, the origin and importance of
the rights to be adjudicated, and the concerns that drove Congress to depart from the
requirements of Article III.26 Bowsher, the Court said, was not contrary, because, “[u]nlike
Bowsher, this case raises no question of the aggrandizement of congressional power at the
expense of a coordinate branch.”27 The test was a balancing one—whether Congress had
impermissibly undermined the role of another branch without appreciable expansion of its own
power.

Although the Court, in applying one or the other analysis in separation-of-powers cases, had never
indicated its standards for choosing one analysis over the other, beyond implying that the
formalist approach was proper when the Constitution fairly clearly committed a function or duty
to a particular branch and the functional approach was proper when the constitutional text was
indeterminate and a determination must be made on the basis of the likelihood of impairment of
the essential powers of a branch, the overall results had been a strenuous protection of executive
powers and a concomitant relaxed view of the possible incursions into the powers of the other
branches. It was thus a surprise when, in the independent counsel case, the Court, again without
stating why it chose that analysis, used the functional standard to sustain the creation of the
independent counsel.28 The independent-counsel statute, the Court emphasized, was not an
attempt by Congress to increase its own power at the expense of the executive nor did it
constitute a judicial usurpation of executive power. Moreover, the Court stated, the law did not
“impermissibly undermine” the powers of the Executive Branch nor did it “disrupt the proper
balance between the co-ordinate branches [by] prevent[ing] the Executive Branch from
accomplishing its constitutionally assigned functions.”29 Acknowledging that the statute
undeniably reduced executive control over what it had previously identified as a core executive
function, the execution of the laws through criminal prosecution, through its appointment
provisions and its assurance of independence by limitation of removal to a “good cause” standard,
the Court nonetheless noticed the circumscribed nature of the reduction, the discretion of the
Attorney General to initiate appointment, the limited jurisdiction of the counsel, and the power of
the Attorney General to ensure that the laws are faithfully executed by the counsel. This balancing,
the Court thought, left the President with sufficient control to ensure that he is able to perform his
constitutionally assigned functions. A notably more pragmatic, functional analysis suffused the
opinion of the Court when it upheld the constitutionality of the Sentencing Commission.30
Charged with promulgating guidelines binding on federal judges in sentencing convicted offenders,
the seven-member Commission, three members of which had to be Article III judges, was made an
independent entity in the judicial branch. The President appointed all seven members, the judges
from a list compiled by the Judicial Conference, and he could remove from the Commission any
member for cause. According to the Court, its separation-of-powers jurisprudence is always
animated by the concerns of encroachment and aggrandizement. “Accordingly, we have not
hesitated to strike down provisions of law that either accrete to a single Branch powers more
appropriately diffused among separate Branches or that undermine the authority and
independence of one or another coordinate Branch.”31 Thus, to each of the discrete questions,
the placement of the Commission, the appointment of the members, especially the service of
federal judges, and the removal power, the Court carefully analyzed whether one branch had been
given power it could not exercise or had enlarged its powers impermissibly and whether any
branch would have its institutional integrity threatened by the structural arrangement.

Although it is possible, even likely, that Morrison and Mistretta represent a decision by the Court
to adopt the functional analysis for all separation-of-powers cases, the history of adjudication
since 1976 and the shift of approach between Myers and Humphrey’s Executor suggest caution.
Recurrences of the formalist approach have been noted. Additional decisions must be forthcoming
before it can be decided that the Court has finally settled on the functional approach.

Footnotes

Among the best historical treatments are M. Vile, Constitutionalism and the Separation of Powers
(1967), and W. Gwyn, The Meaning of the Separation of Powers (1965). back

Thus the Constitution of Virginia of 1776 provided: “The legislative, executive, and judiciary
department shall be separate and distinct, so that neither exercise the powers properly belonging
to the other; nor shall any person exercise the powers of more than one of them, at the same
time[.]” Reprinted in 10 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS 52 (W. S.
Windler ed., 1979). See also 5 id. at 96, Art. XXX of Part First, Massachusetts Constitution of 1780:
“In the government of this commonwealth, the legislative department shall never exercise the
executive and judicial powers, or either of them; the executive shall never exercise the legislative
and judicial powers, or either of them; the judicial shall never exercise the legislative and executive
powers, or either of them; to the end it may be a government of laws, and not of men.” back

“In republican government the legislative authority, necessarily, predominates.” THE FEDERALIST,
No. 51 (J. Cooke ed. 1961), 350 (Madison). See also id. at No. 48, 332–334. This theme continues
today to influence the Court’s evaluation of congressional initiatives. E.g., Metropolitan
Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 273–74,
277 (1991). But compare id. at 286 n.3 (Justice White dissenting). back

The intellectual history through the state period and the Convention proceedings is detailed in G.
WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776–1787 (1969) (see index entries under
“separation of powers”). back
5

THE FEDERALIST Nos. 47–51 (J. Cooke ed. 1961), 323–353 (Madison). back

Id. at No. 47, 325–326 (emphasis in original). back

Id. at Nos. 47–49, 325–343. back

Id. at No. 51, 349. back

“While the Constitution diffuses power the better to secure liberty, it also contemplates that
practice will integrate the dispersed powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Justice Jackson concurring). back

10

E.g., Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42
(1825). back

11

See Mistretta v. United States, 488 U.S. 361, 415–16 (1989) (Justice Scalia dissenting). back

12

The principal example is Myers v. United States, 272 U.S. 52 (1926), written by Chief Justice Taft,
himself a former President. The breadth of the holding was modified in considerable degree in
Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and the premise of the decision itself
was recast and largely softened in Morrison v. Olson, 487 U.S. 654 (1988). back

13

Beginning with Buckley v. Valeo, 424 U.S. 1, 109–43 (1976), a relatively easy case, in which
Congress had attempted to reserve to itself the power to appoint certain officers charged with
enforcement of a law. back

14

Bowsher v. Synar, 478 U.S. 714 (1986). back

(1898). back

15

INS v. Chadha, 462 U.S. 919 (1983). back

16

Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). back

17

Morrison v. Olson, 487 U.S. 654 (1988). See also Mistretta v. United States, 488 U.S. 361 (1989).
back

18

The tenor of a later case, Metropolitan Washington Airports Auth. v. Citizens for the Abatement of
Airport Noise, 501 U.S. 252 (1991), was decidedly formalistic, but it involved a factual situation and
a doctrinal predicate easily rationalized by the principles of Morrison and Mistretta,
aggrandizement of its powers by Congress. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989),
reasserted the fundamental status of Marathon, again in a bankruptcy courts context, although
the issue was the right to a jury trial under the Seventh Amendment rather than strictly speaking a
separation-of-powers question. Freytag v. Commissioner, 501 U.S. 868 (1991), pursued a
straightforward appointments-clause analysis, informed by a separation-of-powers analysis but
not governed by it. Finally, in Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 467 (1989)
(concurring), Justice Kennedy would have followed the formalist approach, but he explicitly
grounded it on the distinction between an express constitutional vesting of power as against
implicit vestings. Separately, the Court has for some time viewed the standing requirement for
access to judicial review as reflecting a separation-of-powers component—confining the courts to
their proper sphere—Allen v. Wright, 468 U.S. 737, 752 (1984), but that view seemed largely
superfluous to the conceptualization of standing rules. However, in Lujan v. Defenders of Wildlife,
504 U.S. 555, 577 (1992), the Court imported the take-care clause, obligating the President to see
to the faithful execution of the laws, into standing analysis, creating a substantial barrier to
congressional decisions to provide for judicial review of executive actions. It is not at all clear,
however, that the effort, by Justice Scalia, enjoys the support of a majority of the Court. Id. at 579–
81 (Justices Kennedy and Souter concurring). The cited cases seem to demonstrate that a strongly
formalistic wing of the Court continues to exist. back

19

“The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits
of its power . . . must be resisted. Although not ‘hermetically’ sealed from one another, the
powers delegated to the three Branches are functionally identifiable.” INS v. Chadha, 462 U.S. 919,
951 (1983). See id. at 944–51; Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458
U.S. 50, 64–66 (1982) (plurality opinion); Bowsher v. Synar, 478 U.S. 714, 721–727 (1986). back

20

CFTC v. Schor, 478 U.S. 833 (1986); Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568,
587, 589–93 (1985). The Court had first formulated this analysis in cases challenging alleged
infringements on presidential powers, United States v. Nixon, 418 U.S. 683, 713 (1974); Nixon v.
Administrator of General Services, 433 U.S. 425, 442–43 (1977), but it had subsequently turned to
the more strict test. Schor and Thomas both involved provisions challenged as infringing judicial
powers. back

21

INS v. Chadha, 462 U.S. 919, 952 (1983). back

22

462 U.S. at 952. back

23

Bowsher v. Synar, 478 U.S. 714, 726–727, 733–734 (1986). back

24

Although the agency in Schor was an independent regulatory commission and the bankruptcy
court in Northern Pipeline was either an Article I court or an adjunct to an Article III court, the
characterization of the entity is irrelevant and, in fact, the Court made nothing of the difference.
The issue in each case was whether the judicial power of the United States could be conferred on
an entity that was not an Article III court. back

25

CFTC v. Schor, 478 U.S. 833, 848 (1986) (quoting Thomas v. Union Carbide Agric. Products Co., 473
U.S. 568, 587 (1985)). back

26

Schor, 478 U.S. at 851. back

27

478 U.S. at 856. back

28

To be sure, the Appointments Clause (Article II, § 2) specifically provides that Congress may vest in
the courts the power to appoint inferior officers, Morrison v. Olson, 487 U.S. 654, 670–677 (1988),
making possible the contention that, unlike Chadha and Bowsher, Morrison is a textual
commitment case. But the Court’s separate evaluation of the separation of powers issue does not
appear to turn on that distinction. Id. at 685–96. Nevertheless, the existence of this possible
distinction should make one wary about lightly reading Morrison as a rejection of formalism when
executive powers are litigated. back

29

487 U.S. at 695 (quoting, respectively, Schor, 478 U.S. at 856, and Nixon v. Administrator of
General Services, 433 U.S. at 443). back

30
Mistretta v. United States, 488 U.S. 361 (1989). Significantly, the Court acknowledged reservations
with respect to the placement of the Commission as an independent entity in the judicial branch.
Id. at 384, 397, 407–08. As in Morrison, Justice Scalia was the lone dissenter, arguing for a fairly
rigorous application of separation-of-powers principles. Id. at 413, 422–27. Back

Examples of Checks and Balances in the Constitution

Because the U.S. government is a tripartite system, which means it has three branches, the
country's Constitution includes checks and balances that make all branches essentially equal.
Some examples of checks and balances in the U.S. Constitution may be familiar, while others are
relatively unknown.

U.S. Constitution Checks and Balances Examples

The U.S. Constitution is full of checks and balances of the three branches of government. The best
example of checks and balances is that the president can veto any bill passed by Congress, but a
two-thirds vote in Congress can override the veto.

Other examples include:

 The House of Representatives has sole power of impeachment, but the Senate has all
power to try any impeachment.

 Any bills that intend to raise revenue must originate in the House of Representatives, but
the Senate also has to approve the bill.

 Congress has the power to set and collect any taxes or duties.

 The president is commander-in-chief of the U.S. Army and Navy.

 The president has the power to grant pardons and reprieves for crimes against the U.S.
except in an impeachment.

 The president can make treaties, but only with a two-thirds agreement from the Senate.

 The House of Representatives and the Senate both have to pass the same bill before it can
become a law.

 The president can appoint Supreme Court judges, but the Senate must approve these
choices.

 Supreme Court judges have the power to declare presidential actions as unconstitutional.

 The vice president is also automatically the president of the Senate.

 Congress can amend the Constitution, which means they can override a Supreme Court
decision.

Checks and Balances Definition

The definition of checks and balances is simply a system for distributing governmental powers.
Each branch of the government has specific procedures only they can follow that help protect
against fraud, errors, and illegal actions. These special procedures are distributed as evenly as
possible so no one segment has ultimate power or more power than any other.

A system of checks and balances can be found in almost any constitutional government, not just in
the United States.

Methodology

In 1787, several U.S. states got together to update the Articles of Confederation, which was the
current way states work together as one group. The goal was to create a U.S. Constitution that
would give a central government power to act nationally, but not take away the rights of any state
or its people.

They specifically wanted to avoid a government that copied the king of England and his
parliament.

Separation of Powers

The power of the new government was split into three branches, creating a clear separation of
powers. The three branches of government are:

 The executive branch (President, Vice President and cabinet) carries out laws.

 The legislative branch (Congress: Senate and House of Representatives) makes laws.

 The judicial branch (Supreme Court and other federal courts) interprets laws.

Once these branches were established, Congress realized they'd need to make sure no branch
could simply overtake the others. This is where the system of checks and balances came in.

Articles of the Constitution

The specific powers of each branch of the government were outlined in the Constitution. Any
powers not specifically noted were meant to be under the control of individual states. You can find
out how the government structure was set up and what each branch is responsible for by looking
at the Articles of the Constitution.

The first three Articles tell you more details about each branch of the government:

 Article I outlines the powers of Congress, or the legislative branch.

 Article II outlines the executive branch and the powers of the president and vice president.

 Article III outlines the judicial powers of the judicial branch.

Modern Examples of Checks and Balances

A quick scan of major new stories over the last couple decades will show you examples of checks
and balances in modern times.
  In 1996, the Defense of Marriage Act (DOMA) was signed into law by President Bill Clinton.
It declared that the federal definition of marriage was between a man and a woman. In
2015, the Supreme Court ruled that same-sex marriage was legal in federal terms.

 In 1998, the House of Representatives brought impeachment charges against President Bill
Clinton, but the Senate acquitted him.

 In 2016, Congress overrode a veto by President Barack Obama over the issue of families of
9/11 victims being allowed to sue Saudi Arabia.

The Constitution in Action

Take a look at current events and you'll probably see examples of checks and balances today in
government proceedings. The president of the United States changes every four years, or eight
years if a president is re-elected, and some government positions change more frequently. This
keeps the system of checks and balances relevant as beliefs, attitudes, and opinions change.