checks and balances and separation of powers

checks and balances and separation of powers

The doctrine of separation of power forms the basis of the United States constitution. The philosophy behind this doctrine aims at diffusing and dividing the power so that no individual or entity holds much power that can harm the citizens. The doctrine is thus a measure to ensure that the government does not consolidate all the power which it may violate and harm its citizens (Legal information institute, 2020). Government functions in this doctrine get divided into three groups, which include the legislative, judicial, and executive. The doctrine thus ensures that there is a legitimate government where the three bodies act independently. Still, at the same time, a system of check and balance is established to ensure that the power is not absolutely held by the three arms and thus not misused.

It is worth noting that no branch is allowed to exercise its power over the others, but they overlap and complement each other. In the United States, Congress has the power to legislate while the executive power is with the president who is empowered by the Constitution to perform duties related to executive power. Finally, the Supreme Court and other small courts have the judicial ability to facilitate justice in the country. The separation of power in the united stated Constitution has its roots in the 1787 state delegation. The idea of the separation of power got shaped by the colonial American’s philosophy and the experience of being an English colonist. But the system is not without challenges since the powers are too complex as they overlap, thus bringing about competition and conflict in the government.

Alexander Hamilton, James Madison, and John Jay got involved in writing the federalist papers, which were a collection of arguments responding to anti-federalist’s objections to the new Constitution. The founding fathers believed that the system of checks and balances was essential in the Constitution since it ensures that the three branches of government have no excess power that can harm other citizens. The system provides that there is a balance of power between the branches, thus ensuring that no single branch may seize the government. Federalist paper 51 is well known for having information on the checks and balances while federalist paper 47 and 45 comprises of information on the distribution and dangers of power respectively (Robinson, 2019). The founding fathers protected the new Constitution and ensured that power got distributed across all the branches. Madison, in federalist paper 47, stated that “[A]accumulation of all powers, legislative, executive, and judiciary in the same hands … may justly be pronounced the very definition of tyranny.” (Lawrence, 2014) The statement shows that the psychology behind the separation of power was to facilitate the eradication of tyranny. One of the primary checks and balances by the executive to the legislature is by vetoing laws intended to be passed by the congress. The legislative branch, on the other hand, checks on the executive through the two-third votes while passing laws over the veto. The judiciary checks the legislative and executive branches through the declaration of laws constitutional or otherwise.

Madison in federalist paper 51 wrote, “double security arises to the rights of the people. The governments will control each other, at the same time that each will be controlled by itself.” (Lawrence, 2014) It means that no single branch of government has excess powers to overpower others due to the evaluation by other departments. The voting in of representatives by the public is also a form of check and balance to ensure that people who hold office are doing the right thing. The legislative branch also checks and balances the executive by approving the appointments made by the president. Also, congress can order for investigation on the executive. The legislative branch, on the other hand, also checks on the judicial branch by approving or overturning the selection of new judges.

It is also worth noting that the legislative branch may impeach the federal officer. Despite the check and balances, the founding fathers also ensured that the branches were independent, and it is due to such reason that the president does not directly fire or employ the judges in Supreme Court without involving the legislature(Robinson, 2019). It is due to this reason that Alexander Hamilton wrote “The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election… They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided.”

Equality in government also gets enhanced by checks and balances in other areas of the government other than only in the three branches. As suggested by Madison in federal paper 45 “The powers delegated by the proposed Constitution to the federal government are few and defined. Those that are to remain in the State governments are numerous and indefinite.” (Lawrence, 2014) The House of Representatives and senate checks on each other by rejection and accepting other’s bills. The duration elected government officials stay in office is also a means of checking on the government by the people. The system of checks and balances also facilitates the division of power between the federal and state governments. The founding fathers ensured that the enumerated power belonged to the federal government while reserved powers are those not delegated to the federal government and thus to the people or state. The implied powers get passed by congress for the fulfillment of constitutional purposes.

There have been various moves mainly by the political class to reject the separation of powers on the basis that the government, just like a living thing, cannot be separated. Those against the separation of power argue that there needs to be innate coordination of activities for the government to function properly. The recent conflicts between the three branches of the government is a threat to the separation of powers. One of the severe threats to democracy and separation of power lies in the appointment of Supreme Court judges by the Senate after nomination by the president. The process has been greatly politicized, and this was evident during the appointment of judge Merrick garland to take the position of judge Scalia who had died during President Obama’s reign. The refusal of the Senate to hold a meeting to discuss the appointment of the judge was a threat to the process based on political affiliations. In 2018 also Senate again almost ruined the appointment of judge Brett Kavanaugh President Trump’s nominee (Faulkner & Spissinger, 2019). The two examples show that the parties at the Senate do not advise and consent during the appointment meeting but instead compete to either appoint or reject the nominee on a political party basis. Therefore this threatens the judicially, which may end up becoming part of the congress that contradicts check and balance in the separation of power.

The blocking of Trump administration immigration policies meant to prevent the seeking of asylum by immigrants at various border points by the federal court judge led to a conflict that threatened the separation of powers. President Trump ignored the ruling by associating the federal court judge with former president Obama, thus threatening the independence of the judicial system. Though the president defended the move citing it as a motivated political decision, his decision to publicly threaten the implementation of the ruling is a threat to the separation of power and the United States constitution at large (Illing, 2019). Trump’s attack on the free press, law enforcement bodies, congress, and the courts on a political or racial basis is also a threat to the separation of power.

Separation of power and the checks and balances are good ideas. Separation of power ensures that the government, which has the power to govern, does not use the power to demean the democracy of its citizens. It is through the separation of power that the government is limited by rules and regulations while carrying out its actions. The fundamental rights and freedom of the citizens are available due to the limitation of power by this doctrine. If separation of power is not respected, the united states may become a totalitarian or authoritarian state where citizens are not protected against the power of the government.

Checks and balances, on the other hand, just like separation of power, are essential in ensuring that the three branches of government do not have excess powers. The evaluation of the decision of a particular branch by other branches ensures that the action is legal and appropriate. It is due to the system of checks and balances that some activities, such as the nomination of Supreme Court judges by the president, may be rejected by the Senate (Robinson, 2019). Therefore without the system of checks and balances and the doctrine of separation of powers, countries can quickly enter into a conflict. it is thus essential that a decision by one branch of the government gets analyzed and validated by other branches