Chapter 8 - Separation of Powers


Power is central to the stability and authority of any government. In the United States, there are several concepts involving power. Those concepts include expressed powers, implied powers, shared powers and separation of powers. Expressed powers are the powers enumerated or listed in Article I, Section 8 of the Constitution. Those powers include the power to declare war, levy taxes and regulate commerce among the states. Implied powers are those powers exercised by the government for which there is no actual or specific mention in the Constitution, but there is also no prohibition against the exercise of the power. An implied power is usually carried out under the authority of Article I, Section 8, paragraph eighteen of the Constitution, the necessary and proper clause, or is based on custom or has been acquired over time. Examples of an implied power would be the creation of an agency like the Federal Aviation Authority (FAA), the ability of the legislature to issue subpoenas or the authority of the Supreme Court to exercise judicial review. A shared power is a power that both the federal and state governments can exercise, such as the power to levy taxes.
All of these concepts about power are important, but separation of power is a cornerstone of our constitutional system and the republican form of government that exists in the United States. Under the concept of separation of powers, no one branch or person can “aggrandize power and threaten individual liberties.”  In its Dialogue on the Separation of Powers, the American Bar Association defines separation of powers as “. . . the idea that a government functions best when its powers as not concentrated in a single authority but are divided among different groups or branches.”  The United States was the first nation to formally integrate separation of powers in the framework of the government with the adoption of the Constitution in 1787.
The concept of separation of powers developed during the Enlightenment period in the eighteenth century. Enlightenment thinkers like Baron de Montesquieu, David Hume and William Blackstone all contributed to the concept, but it was the framers of the Constitution that first put the idea or theory into practice. The framers sought to prevent, as much as possible, the abuse of power they felt existed in the pre-Revolutionary War government under the British. As they wrote the Constitution, the framers “drew their principles of government from a variety of sources and continually redefined those standards in the light of changing political conditions.”  The principles included the idea of “mixed government” advocated by Plato and Aristotle, the idea of a balance of power that developed during the colonial period and the idea of multiple branches of government advocated by Montesquieu and other Enlightenment thinkers.
The existence of different branches of government is central to the separation of powers concept. There are three branches of government in the United States ??" executive, legislative, judicial ??" and they all exercise different powers. However, one should realize that the separation is not complete and distinct; there is overlap among the three branches that sometimes leads to controversy and challenge. Even when the controversy occurs, the separation of powers doctrine allows for peaceful solution through judicial review, Congressional hearings and executive privilege.

The Federal Government

The Three Branches and Their Powers

The Enlightenment thinkers identified three areas where governments exercise power:

Legislative power - the power to make laws
Executive power - the power to enforce laws
Judicial power -  the power to interpret laws

The founding fathers incorporated these three branches into the Constitution and attempted, as much as was possible, to enumerate the powers of the three branches. Article I of the Constitution provides the framework for the powers and structure of the legislative branch. The powers given to the legislative branch were listed in Section 8 of Article I. In eighteen separate statements or paragraphs, the founding fathers stipulated the powers of the legislative branch to include the ability to levy taxes, borrow money, coin money, regulate commerce and immigration, create a postal system, etc. Paragraph eighteen presents the “necessary and proper clause” in which the legislative branch was given the power to make all laws necessary and proper for carrying the powers enumerated in the preceding seventeen paragraphs.
Before proceeding to the executive and judicial branches, the founding fathers found it necessary to also prohibit certain powers to the federal legislative branch. The powers prohibited included the passage of ex post facto laws, the levying of export taxes and the granting of titles of nobility. In a similar fashion the authors of the Constitution prohibited the states from exercising certain powers as well, including the ability of the states to coin money, enter alliances with foreign nations, and pass laws impairing the obligation of contracts. The prohibition of these powers to both the federal and state government is important to the concept of separation of powers.
Article II of the Constitution focuses on the executive branch. As we know, the executive branch is embodied in the President. The President is commander-in-chief of the armed forces and has the power to nominate judges and ambassadors with the advice and consent of the Senate. The President can also negotiate treaties with foreign nations, though the treaties are not binding on the United States without ratification of the Senate. It is the responsibility of the president to “take care that the laws be faithfully executed.”
The powers of the judicial branch are outlined in Article III. According to Section 2 of Article III, “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. . . .” The power of judicial review, widely practiced by the judiciary today, is not granted expressly in the Constitution, but neither is it prohibited. The concept of judicial review was argued for in the Federalist Papers and exercised by the Supreme Court first in Hylton v. United States in 1796, in which a federal law was first upheld by the court, and then again in 1803 in Marbury v. Madison, when a federal law was found unconstitutional for the first time.
Part and partial to the concept of separation of powers is the system of checks and balances that exist in our system of government. Each branch has one or more checks on the other branches. The President can veto laws passed by Congress, but Congress can override the vetoes. The Senate can reject presidential appointees and treaties negotiated by the president, but they cannot reduce the compensation paid the President during his term in office. The President can appoint judges, but the judges serve for life (good behavior), so the President cannot remove a judge, only Congress can do that through impeachment. The Supreme Court can invalidate laws, but Congress can pass amendments to the Constitution that may address points of law previously found unconstitutional by the court. With these checks and balances, the founding fathers prevented, to a large degree, abuses of power by any one entity.

Points of Contention
Despite the attempt to enumerate the powers of each branch and even stipulate the powers forbidden to the federal and/or state governments, there are points of contention among the branches. The issues presented below are but a few of the issues that exist in the concept of separation of powers.

The Right to Privacy
The right to privacy is not specifically enumerated in the Constitution nor the Bill of Rights. However, in 1965, the Supreme Court opened the door to right to privacy in Griswold v. Connecticut, a case which focused on marital rights, specifically the right of a couple to use contraceptive devices. Eight years later, in Roe v. Wade, the court expanded the right to include the right of a woman to terminate a pregnancy. Since that decision, discussion over the right to privacy and how far it extends has often been in the forefront of political campaigns and judicial appointments. The recent Supreme Court nominee confirmation hearings focused on the issue and many senators wanted the nominees to stipulate whether they would uphold or overturn Roe v. Wade. Many observers of the confirmation process worried that the demand of the senators that the nominees declare their viewpoint overstepped the separation of powers concept. Did the Supreme Court go too far? Only time will tell as a recently passed law in South Dakota prohibits almost all abortions. The law is sure to be challenged in the courts.
Another issue regarding the right to privacy surfaced in the spring of 2006 ??" the issue of the federal government (through the executive branch) listening in on phone conversations without a search warrant. The government also purchased phone records from some companies, an action considered an invasion of privacy by many. The explanation of the action by the executive branch was that the action was necessary to fight terrorism. This issue will most likely play out in the courts over the next few years.

Federalism has long been a battle ground in separation of powers. Just how much power does the federal government have to pass laws that affect its citizens? Concern over school safety led to the passage of the Gun-Free School Zones Act, making it a federal crime to have a gun in a school zone. But states have laws in this area, and the Supreme Court invalidated this law in United States v. Lopez, stating the law was outside the scope of the commerce clause of the Constitution. How far should the federal government go in combating guns in schools when education is usually considered the purview of the state?
Federalism comes into play when the federal government passes laws that threaten to withhold funds from states that do not comply. In the early 1980s the states were told to change the legal age for drinking alcohol to 21 or face the loss of federal highway funds. No Child Left Behind, the reauthorization of the Elementary and Secondary Schools Act in 2001, threatens to withhold Title I funding from states that do not improve educational achievement. Much is expected of the states, but little funding is given to implement the law, leading many people to argue that the law is an unfunded mandate, a popular complaint regarding federalism and separation of powers. But federalism has been an issue since the early days of the Constitution when the Kentucky and Virginia Resolves argued that states should be able to declare “null and void” laws they felt were unconstitutional. Over 200 years later the issue still remains, and will remain as long as we have a federal system of government where power is shared among different levels of government.

Privilege is usually known as “executive privilege” because most of the cases regarding this issue have involved the President arguing that papers and other records in the possession of the executive branch were privileged information and not subject to subpoena or public review. The most famous of the cases involving this issue of separation of powers is United States v. Nixon, 1974, stemming from the Watergate break-in. The court found against the President and stated that while executive privilege is important and should not be trampled on by the other branches, there are times when the right to know supersedes executive privilege. Nixon had to hand over the papers in question. President George W. Bush recently invoked executive privilege to prevent certain documents relating to his Supreme Court nominees from being released during their confirmation hearings.
Privilege recently came into the limelight for a different reason. In late May 2006, the FBI executed a search of the office of a member of the House of Representatives. The representative was under investigation for bribery, but until now the congressional offices of members of Congress were considered off limits to searches by the executive branch. Congress views the search as a breech of the separation of powers while the executive branch sees the issue as one of upholding the law. It will be interesting to see if the Supreme Court will become involved in this case.
War Powers
Another topic of interest today is the war powers arena. In 1973 Congress adopted the War Powers Act in response to the escalation of the Vietnam War without complete authorization of Congress. The resolution restricts the use of United States troops over a certain length of time without a formal declaration of war. The present war in Iraq and the war on terrorism in Afghanistan and Pakistan have brought the issue back to the forefront of political and constitutional issues. The Supreme Court has never ruled on the constitutionality of the act, but if the wars continue, a challenge to the power of the President as the commander-in-chief may be in the near future.

In 2000 the Supreme Court was pulled into the election arena in the cases of Bush v. Gore. This election issue not only entered the realm of separation of powers in regards to state control of elections, it put the Supreme Court in the middle of choosing the President. While we all know the outcome of the case and the election, the nagging issue in regards to elections is how often will the courts be called upon in the future to decide elections? Every effort should be made to protect the concept of separation of powers in this area of everyday life.
There are numerous other issues that involve the separation of powers; these are only a few of the most recent and most volatile. As concerned citizens we should keep watch over excessive entanglement of one branch with the others.

South Carolina
The concept of separation of powers in the South Carolina state government has evolved in the last fifty years. Under the 1895 state constitution, three branches were established, and Article I, section 8 of that Constitution states: “In the government of this state, the legislative, executive, and judicial powers of the government, shall be forever separate and distinct from each other and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.”  In actuality, the 1895 Constitution placed more power in the hands of the legislative branch than any other branch. The legislature elects the judges and justices for the state courts, and the judges and justices serve finite terms in office, then must be reelected. There are individuals who question whether the courts can truly carry out their function if judged fear the loss of their position if the find against the legislature on issues.
Another issue that has only recently been addressed is the power of the governor to appoint the heads of state agencies. For many years constitutional historians joked that South Carolina actually had four branches of government ??" the traditional legislative, executive and judicial branches ??" and a fourth branch made up of all of the state agencies that answered to no one in particular and whose leadership often fell to individual legislators. Beginning in the early 1970s a movement began to bring order and control to the state bureaucracy. In the early 1990s many of the state agencies were brought under the control of the executive branch. The governor now has the power to appoint the heads of many agencies, such as Commerce, Revenue, Public Safety and Corrections. However, other positions like Education and Agriculture remain elected positions and more often than not, the elected officials do not agree with the direction the governor wants to go on those two issues. Attempts to further create a cabinet under the executive branch have made little headway in recent years.
Today the judiciary remains elected by the legislature and concerns over the lack of election of African American and female candidates to the bench is becoming a volatile issue. Though the judiciary appears to operate outside the political pressures of reelections, as evidenced in the recent court case on the law governing the TERI system, there are still individuals who would like to see the judges elected to the bench like in North Carolina and other states. Appointment of judges for life appears to be a non-issue.
The separation of powers between the legislature and the governor is also a point of debate. The legislature has taken issue with the governor over what they believe is undue pressure on budget decisions, including the very recent discussion over whether the governor would call the legislature to come back for a special session to consider budget vetoes before the primary election, or whether the legislature would set the schedule. In the end the legislature notified the governor that they would not return until after the election whether the governor called a special session or not. This issue highlights the tension that exists between the legislative and executive branches o government in South Carolina.

Separation of powers in South Carolina is unique and at times difficult to understand. James Underwood summarizes the situation well.

 . . . the principle of separation of powers as applied in South Carolina may appear to be functionally interchangeable with the operation of the doctrine in many other states and the federal government. However, despite the presence of significant similarities to the manner in which the separation of powers concept functions in other American jurisdictions, the South Carolina system of allocating power among the branches of the state government has taken a ruggedly independent course that has resulted in a unique adaption of the doctrine to its distinct traditions and needs.
The concept of separation of powers bears watching in South Carolina over the next few years as the roles of the various branches become more intertwined and as constitutional offices like Superintendent of Education or Secretary of State are considered for change from elected to appointed positions.

 Teaching Resources for Chapter 8