check and balances

7/29/2019 Check and Balances

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Separation of Powers: The Role of an Independent

Judiciary in Sustaining our Democracy

Part I: What Is Separation of Powers?What do we mean by separation of powers? At the simplest level, it is the idea that a government functions best when itspowers are not concentrated in a single authority but are divided among different groups or branches. The United States wasthe first nation that used a written constitution to formally adopt separation of powers as the framework for its government.

Development of the Concept of Separation of PowersThe idea of separation of powers developed during the period known as the European Enlightenment. The Enlightenmentbegan in the seventeenth century and lasted until shortly before the beginning of the American Revolution. Enlightenmentthinkers identified three main powers that were inherent in government. These include:

Legislative power: the power to make law. Executive power: the power to enforce law. Judicial power: the power to interpret the law.

The doctrine of the separation ofpowers was adopted . . . not topromote efficiency but to precludethe exercise of arbitrary power.-Justice Louis Brandeis1,Myers v. US 1926

Enlightenment theories of separation of powers warned against the concentration of all government powers in the hands of asingle individual or authority. They were heavily influenced by the example of England. Over the course of the seventeenthcentury, England had forged a political system that divided government power among three different authorities.

Parliament held legislative power. Parliament was made up of two houses the House of Commons and the House ofLords. Members of the House of Commons were elected. Members of the House of Lords mostly inherited theirpositions. Both houses deliberated on proposed laws.

A monarch (king or queen), who inherited the throne for life, held executive power. A series of agreements betweenParliament and the monarch had established Parliaments supremacy, or control, over the monarch. By the earlyeighteenth century, the monarchs power was mostly limited to enforcing laws passed by the Parliament.

A judiciary held judicial power. Up through the seventeenth century, judges in England had served at the pleasure ofthe monarch. The monarch had been able to dismiss judges at will. But in 1710, the monarch agreed to a request byParliament to guarantee judicial independence. The monarch agreed that judges will hold their positions duringgood behavior. He also agreed that judges salaries could not be diminished while they were in office. No judgecould be dismissed unless both houses of Parliament approved.

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Part II: What Is Separation of Powers

and the U.S. Constitution

The United States Constitution limits the power of the federal government through several means, particularly by separating

power between three competing branches. The Constitution does not, however, contain a specific provision explicitlydeclaring the powers of the three branches be separate. Separation of powers is the concept that a government functions bestwhen its powers are not concentrated in a single authority, but are divided among different branches. The United States wasthe first nation that used a written constitution to formally adopt separation of powers as the framework for its government.The Maryland Constitution mirrors the legislative/executive/judicial split of the United States Constitution. The separationof powers is qualified by the doctrine ofchecks and balances within the government and between the three branches; theUnited States Constitution, a living document, created and continues to nurture this perfect balancing act as a means toprevent the concentration and abuse of power.

Constitutional Powers: Separate And EqualThe framers of the United States Constitution identified three competing divisions or branches of government and the powersof each of these:

Legislative power the power to make law

Executive power the power to enforce law

Judicial power the power to interpretlaw

In the first three articles of the Constitution, the framers defined the three branches of government that continue to sharepower in the United States government today. The term checks refers to the ability, right and responsibility of each branchto monitor the activities of the others; balances refers to the ability of each branch to use its constitutional authority to limitor restrain thepower of the others.

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Executive Power: The President

The powers of the executive branch are defined in Article II of the United States Constitution. Executive power is vested inthe President. The principal responsibility of the President is to take care that the laws be faithfully executed. The executivepowers include oversight of the federal agencies that implement laws passed by Congress. The President is Commander inChief of the nations armed forces. The President has the power, subject to the advice and consent of the Senate, to make trea-ties, nominate judges to the judiciary, and appoint officers of the government. The President also has the power to pardonindividuals convicted of federal crimes.

Checks and balances on the executive power include several provisions that give Congress and the judiciary oversight of execu-tive actions. The House of Representatives, by simple majority, has the power to indict the President on charges of impeach-ment; if indicted, the Senate tries and can remove the President from office if convicted by a two-thirds majority. The Senatehas the power to reject treaties negotiated by the President and to reject presidential nominated to the federal judiciary andother government offices. Finally, the judiciary has the power to declare executive actions unconstitutional if those actions arechallenged in court.

The chief magistrate derives all his authority from the people.

-Abraham Lincoln, First Inaugural Address, 1861

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Legislative Power: CongressArticle I of the United States Constitution places the sole power to legislate in the UnitedStates Congress. Congress is bicameral, meaning it is composed of two houses the Houseof Representatives and the Senate. Currently, there are 435 members of the House of Rep-resentatives (determined by population) and 100 Senators (2 for each state). Both housesmust agree upon a bill for it to become law.

The Constitution gives Congress power of the United States budget, including powers toraise taxes, borrow and spend money, declare war and raise and support military forces.Congress also has the power to regulate immigration, the mail, patents and copyrights, andcommerce between the states and the federal government and other countries. Finally,Congress has the power to establish federal courts below the United States Supreme Court.Most familiar, is Congresss power to pass laws that are necessary and proper to give ef-fect to its powers.

Congresss power is limited in various ways as a part of the Constitutional doctrine ofchecks and balances. The President is able to check Congresss power by exercising thepresidential veto. If the President vetoes a bill, that bill will not become law unlesstwo-thirds of the members of both the House and the Senate agree to override the veto.The Constitution also created an independent judiciary with the power to hear all casesand controversies arising under the constitution. The judiciary has used this power todeclare laws enacted by Congress unconstitutional.


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Do you ever have one of those days when everything

seems unconstitutional?"

Constitutional Conflicts was created for use by first-year law students at the University of Missouri-K. C.

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Judicial Power: The Courts

Article III of the Constitution establishes the Supreme Court of the United States and such inferior courts as the Congressmay from time to time ordain and establish. Today, those inferior courts include the United States District Courts, whichare located throughout the United States and where most federal cases are tried, and the Circuit Courts of Appeal, which re-view the decisions of the District Courts. The Supreme Court is the court of last resort within the federal judiciary on ques-tions of federal law and the Constitution.

The Constitution protects the federal judiciarys independence from the other two branches by providing that federal judgesare secure in their positions and are not subject to removal during good behavior, thus they serve for life. The Constitution

also give the judiciary the power to hear all cases and controversies arising under the Constitution, federal law, treaties withother nations, and other specialized cases, such as controversies between two or more states.

Both Congress and the President have powers that serve to check and balancethe power of the judiciary. One limitation is thatCongress has control over the judiciarys overall budget. Congress can also act to amend the Constitution if it disagrees withthe Supreme Courts interpretation of the document. Constitutional amendments are difficult and the process mandates ap-proval by two-thirds majority of both houses of Congress and the approval of three-fourths of the states. Finally, Congresshas the power to impeach and try federal judges for misconduct in office.

The Presidents power to nominate all federal judges gives the executive branch control over the individuals named to serve inthe courts. This power is shared by the Senate via the Constitutional right of advice and consent in the nomination process.A majority of the Senate must consent to the Presidents judicial nominations.

Additional limitations to the judiciarys power include the fact that judges can only decide the cases that are brought to them.They cannot declare a law or government action unconstitutional unless they are asked to do so by an affected party. More-over, the appellate review process ensures that virtually all decisions of individual judges are subject to review by other judges.Even at the Supreme Court, a justice must convince a majority of his or her colleagues to agree to a decision.


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Executive: Governor

The Chief of the Executive Branch of Maryland is the Governor, who is electedto serve for four years. The powers and duties of the Executive Branch are locatedin Article II of the Maryland Constitution. The Lieutenant Governor of Marylandholds only the duties conferred by the Governor.

Generally, the Executive Branch is charges with enforcing or executing the laws.Some law may be created by the Executive Branch, for example Executive Ordersand treaties.

Legislative: Maryland LegislatureMaryland has a bicameral system consisting of the Senate and the House ofDelegates. The powers and duties of the Legislative Branch are located inArticle III of the Maryland Constitution. Currently there are 47 Senators and

141 Delegates that serve in the General Assembly. Each of Marylands 47legislative districts is represented by one Senator and three Delegates.

The General Assembly meets in Annapolis every January and serves for 90 consecutive days. The General Assembly makeslaws, called statutes.

Judicial: The CourtsThe powers and duties of Marylands Judiciary Branch are located in Article IV of the Maryland Constitution. The role ofthe Judicial Branch is to interpret the law.

Marylands Judiciary Branch is comprised four court levels: two trial courts and two appellate courts. The function of a trialcourt is to consider evidence in a case and to make judgments based on the facts and underlying law and legal precedent. Thismay result in the awarding of monetary damages or other

relief in a civil case, or the imposition of imprisonment orfines in a criminal case. Appellate courts review a trialcourts actions and decisions in given cases and decidewhether the trial judge properly followed the law and legalprecedent. For jury trials, the appellate court may have todecide whether the jurys decision was proper, given the factspresented and the underlying law in the case. Generally,appellate courts do not decide which party won or lost a trial,nor do they conduct a new trial. Rather, they review theearlier trial and determine whether or not it was fair, accord-ing to the law.

Part III: Marylands Three Branches of Government:

An Introduction

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It is not by accident, but by design that

ours is a government of three independent

and co-equal branches, checking and bal-

ancing each others power and authority.

Such an arrangement places a premium on

cooperation and collaborationonly when

all work together can that natural tension be

directed to achieving the greater good.

-Chief Judge Robert M. Bell

State of the Judiciary Address, 2005.

We continue to be devout believers in the doctrine of separation of powers of governmental checks and balances,in practice as well as in theory. We believe that each of the three coordinate branches of government, to successfullyaccomplish its function, must work in harmony with the others, if the good government envisaged by theConstitutional creation of three branches - the Legislative, the Executive and the Judicial - is to be achieved.

- Chief Judge Robert C. Murphy,State of the Judiciary Address, 1975.

Court of Appeal Judges from left to right: Judge Battaglia, Judge Cathell, JudgeRaker, Chief Judge Bell, Judge Wilner, Judge Harrell and Judge Greene.


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Executive Branch

Enforces laws

Presents/prepares budget

Manages Executive departments &

agencies

Federal

- President

State

- Governor

Legislative Branch

Creates laws

Appropriates funds

Creates agencies, authorities and other public

bodies

Federal

United States Congress

Senate (100 members)

House of Representatives

(435 members)

State

Maryland General Assembly

Senate (47 members)

Judicial Branch

Interprets and upholds laws

Protects individual rights

Punishes the guilty

Federal

United States Supreme Court

United States Circuit Courts

United States District Courts

State

Maryland Court of Appeals

Maryland Court of Special Appeals

Maryland Circuit Courts

As you know, the United States Constitution defines the three branches of government as:

Executive

Legislative

Judicial

Maryland Constitution also defines the same three

branches. These branches serve aschecks and balances

for the other branches.

The Three Branches

Lets Review

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