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Unformatted text preview: Separation of Powers
Competition Among Institutions of Government The US Constitution Key Concepts in the Design of the US Constitution The Separation-of-Powers Principle The purpose: to guard against tyranny: prevent the concentration of government power in one person, faction, or one branch of government In reality, separation of powers is shared powers among the three separate institutions (the executive, the legislature, and the judiciary) Why are there no military coups in America? Separate institutions--the executive (the presidency) and the legislature (Congress)--share control of the military Congress provides the funding for the military and sets the rules and regulations by which it operates...the president deploys US troops into battle In addition, the top leadership of the armed forces are civilians, not 5-star Generals Many countries have separate institutions but "real" power often resides with the executive (which includes the military), thus creating opportunities for coups Checks and Balances Congress, Presidency, Judiciary
Separation of Powers Looking strictly at the constitutionally-derived checks on power, Congress is the most powerful of the three institutions (or branches) of government But beginning in the 1930s, Congress began to delegate its authority to the executive branch law-making initiation to the president discretion over rules and regulations to the federal bureaucracy (e.g., tariff rates) Congress, Presidency, Judiciary
Separation of Powers Is Congress most powerful? (continued) Beginning in the 1950s, Congress began to abdicate its "check" on the president's war-making powers Congress not consulted when President Truman retaliated in the Korean War (1950) Truman defined Korea as a police action, not as a war The UN authorized the use of force on the part of NATO Congress supported the war effort but did not provide a formal authorization of the use of force Congress gave President Johnson a blank check to fight the Vietnam War after the Gulf of Tonkin incident (1964) Gulf of Tonkin Resolution repealed in 1971 War Powers Resolution (1973) has done little to stem the president's war-making powers Congress, Presidency, Judiciary In practice, is the President most powerful? The president has become the focus of the American political system President is expected to initiate social, economic and foreign policy...Congress has a say but initiation gives the president an agenda-setting advantage In the annual state of the union address, the president usually presents a laundry list of initiatives he wants Congress to enact into law Separation of Powers What about the Supreme Court? Final decision authority officially resides with the Supreme Court through its power of judicial review In modern America, Congress and the President respect the Supreme Court as final arbitrator The courts are slow and usually take years to decide a controversy Some exceptions: Bush v. Gore (2000) was decided very quickly Congress, Presidency, Judiciary
Separation of Powers Conclusion: In practice, which institution is most powerful? Hard to say, but today it appears that it is either the President or the Supreme Court President has more flexibility than the Supreme Court and can usually act much more quickly But in the end, Supreme Court is the final arbitrator of all controversies Still, as far as constitutionally-derived powers are concerned, Congress is most powerful, and in practice, Congress could reassert itself at any time Congress, Presidency, Judiciary
Separation of Powers In practice, separation of powers is really shared powers among separated institutions Control of the Military: President commands the troops to deploy for battle Congress sets the rules and regulations for the military--and-appropriates money for military operations Example: Pentagon did not the V-22 Osprey but Congress did, so the program to build the V-22 was continued Law Making: President can propose legislation But House and Senate (Congress) must pass the proposed legislation Supreme Court can void laws through its power of judicial review Congress, Presidency, Judiciary
Separation of Powers In practice, separation of powers is really shared powers among separated institutions Control of Federal Bureaucracy What is the federal bureaucracy? It is the part of government that provides products and services to the public: Some examples: FEMA (emergency management) Environmental Protection Agency (enforces environmental laws) Social Security Administration (distributes income checks to the elderly) Postal Service (delivers the mail) FBI (federal police protection) Congress, Presidency, Judiciary
Separation of Powers In practice, separation of powers is really shared powers among separated institutions Control of Federal Bureaucracy President is officially the "boss" of federal employees But Congress controls the structure and funding of the bureaucracy And Congress limits the number of employees a President can fire through the civil service system The bureaucracy is also influenced by interest groups that represent the people the bureaucracy serves (e.g., AARP and Social Security), though the interest groups that represent those served are not officially part of government Conclusion: No one institution has complete (or total) control over government policy Congress, Presidency, Judiciary
Separation of Powers More examples of cooperation than conflict exist among the institutions of government, but conflict better illustrates the separation-of-power principle in action President Franklin D. Roosevelt's (FDR) Court-Packing Plan (1937) A struggle between the President and Congress over the number of Supreme Court justices Congress has the power to set the number of justices on the Supreme Court FDR frustrated because Supreme Court struck down several pieces of FDR's New Deal program, which was designed to pull America out of the Great Depression FDR wanted to add 6 more justices to the Supreme Court, which would have allowed him to make all six appointments Congress, Presidency, Judiciary
Separation of Powers FDR's Court-Packing Plan (1937) The Senate Judiciary Committee rejected FDR's court- packing proposal...suspicious of FDR as being power hungry FDR claimed the Supreme Court was overworked, needed additional members...the Chief Justice testified to Congress that the court was not overworked Though FDR lost the battle, the Supreme Court backed off its opposition to New Deal Conclusion: Purely institutional conflict, not partisan conflict FDR was a democrat and Congress was heavily Democratic This case illustrates an example where institutional loyalty outweighed loyalty to the political party Congress, Presidency, Judiciary Conflict among institutions (continued) Impeachment of President Andrew Johnson (1868) A struggle between the president and congress over reconstruction policy for the southern states following the Civil War Johnson wanted leniency on the South Congress wanted to punish the South Congress engaged in "gotcha" politics, knowing Johnson would violate certain laws, thus giving Congress reason to impeach Tenure of Office Act (1867) president could not fire a cabinet member without Senate approval...Johnson wanted to fire Edwin Stanton, Sec. of War, who was loyal to Congress Command of Army Act (1867) All civilian military orders had to be passed through the General of the Army, General Grant, who was loyal to Congress Johnson was destroyed politically by the impeachment scandal Congress assumed power over reconstruction policy Separation of Powers Congress, Presidency, Judiciary Conflict between institutions (continued) President Wilson and the League of Nations (1919) In the aftermath of WWI, Wilson organized a League of Nations as part of the Treaty of Versailles League of Nations designed to keep the peace among the European nations...use collective force against warmaking countries (w/o US Congressional approval) America was an isolationist (or unilateralist) nation, wanted to bring the troops home and stay out of European affairs Wilson ignored Senate leaders, did not include them in negotiations in Europe to formally end WWI Senate rejected the Treaty of Versailles (1919) Wilson invested all of his political capital in this effort; he was ruined politically, completely ineffective as president for the remainder of his term Separation of Powers Congress, Presidency, Judiciary
Separation of Powers A modern example of conflict The Jose Padilla Case Padilla, an American citizen and Al Qaeda terrorist suspect, has been held by Bush administration as an "enemy combatant" for 3 years Unclear about what Padilla was ordered to do in America 1. Padilla ordered to explode a "dirty bomb" in Chicago?? 2. Padilla ordered to explode bombs in 20 high-rise apartment buildings in Chicago simultaneously?? The Supreme Court threw out the Padilla case in June 2004 on a technicality: the case was filed in the wrong jurisdiction But the Court made decisions in two companion cases Guantanamo Bay, Cuba: Court decided that detainees are entitled to a court hearing Congress, Presidency, Judiciary A modern example of conflict (continued) But the Supreme Court decided in two companion cases Yaser Hamdi: An American citizen caught fighting with the Taliban in Afghanistan Supreme Court decided he too had rights to a court hearing In a plea bargain, US allowed Hamdi to return to Saudi Arabia after he agreed to renounce his US citizenship Separation of Powers The Jose Padilla After 3 years, the Justice Dept charged Padilla with "conspiracy" to kill Americans overseas Bush administration worried the US Supreme Court would re-hear the Padilla case and rule against the Bush's goals of holding prisoners in the war on terror indefinitely In this case, a threat of an unfavorable US Supreme Court decision forced the hand of the executive branch Congress, Presidency, Judiciary Summary of the 4 cases just reviewed Separation of Powers Court Packing Scheme (1937): Conflict between President on one side, Congress and the Supreme Court on the other...conflict over economic policy institutional conflict, not partisan (both the presidency and Congress controlled by Democrats) Impeachment of Andrew Johnson (1868): Conflict between President and Congress over reconstruction policy League of Nations (1919): Conflict between President and Congress over foreign policy Jose Padilla, Al Qaeda suspect (2004): Conflict between President and the Supreme Court...conflict over legal/civil liberty policies during war This too is an example of non-partisan institutional conflict... President is Republican, Supreme Court is majority Republican Bottom Line: No one institution can implement its agenda without the approval of the other two institutions ...
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- Spring '08