As we learned in Module 1, the separation of powers that characterizes the American system of government is rooted in political theory and constitutional tradition, but was adapted by the framers to fit the American experience. The separation of powers seeks to achieve two goals:
Yet Madison in Federalist No. 48 explained that total or pure separation was neither necessary nor desirable for achieving these goals, writing: “unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to free government, can never in practice, be duly maintained.” In addition to bicameralism, the framers gave the executive and the judicial branches the means to check and balance the power of Congress. Meanwhile, they supplied Congress with the power to check other branches. Thus, the power and purpose of the United States Congress must be understood within the context of separation of powers and checks and balances.
We begin this module by distinguishing Congress from the executive and judicial branches. Then, we shall review the various checks and balances between Congress and the other branches, which include both overlapping, or shared, powers and independent powers that allow each branch to check the others. Finally, we consider the current balance of power between the Congress, the president, and the judiciary. Presidential scholar Richard Neustadt observed that the separation of powers and checks and balances taken together might be described best as “separated institutions sharing powers.” Political scientist Charles Jones adds a competitive element to Neustad’s formulation: “separated institutions sharing and competing for powers.” Over time, through this competition, the executive and judiciary have gained a larger share of power than the framers envisioned, but Congress remains formidable.
As we discussed in Module 3, the vesting clauses in Articles I, II, and III grant general power and legitimacy to each of the three branches to carry out specific functions government: Congress makes the laws, the president executes the laws, and the courts interpret the laws. Of course, since the branches share some powers to carry out the functions of one another—e.g., the Congress has a role in executive and judicial appointments; the president has a hand in lawmaking—the properties of the three branches overlap. It is more accurate to say that each branch primarily performs a distinct function of government. Still, as Madison points out in Federalist No. 51: “In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which, to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others.” Before we illustrate the sharing of powers, we should first realize that the three branches were designed to serve their particular functions.
In Modules 2 and 3 we reviewed the lawmaking powers granted to Congress in Article I of the Constitution. As we learned in Modules 4 and 5, the electoral terms, constitutional powers, and organizational features of the House and Senate reflect Congress’ primary role as a legislative and representative body. Lawmaking involves a variety of institutions, rules, procedures, and people. Lawmakers gather input from a wide range of sources, engage organized and interested groups, consult public opinion, and deliberate over facts, arguments, and opinions. Thus, a lawmaking institution should be designed so that it takes time to draft proposals, consider alternatives, and build consensus.
The presidency, on the other hand, was designed to execute the laws, which involves decisiveness, the ability to act quickly (sometimes in secrecy), and the need for accountability in administration of government. In Federalist No. 69, Hamilton describes how the character of the presidency is designed to serve the executive function. First, at the head of the executive authority, should be a “single magistrate.” Hamilton describes the importance of “unity” in the executive—one person rather than a committee of several individuals, something the framers had considered—in Federalist No. 70: “Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.”
Hamilton succinctly describes the differences between Congress and the president: “In the legislature promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarring of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses of the majority.” On the other hand, the executive needs to act with “vigor and expedition.”
The judiciary is the least developed constitutional branch of government. Article III vests the judicial power in the Supreme Court and “inferior courts” that Congress may establish and define the jurisdiction of federal courts and of the Supreme Court. The terms of judges are not limited (they may serve during good behavior, which effectively means that they serve lifetime terms), and judges are appointed by the president with the advice and consent of the Senate, rather than elected by the people.
In Federalist No. 78, Hamilton explains how the appointment and terms of the judges are designed to carry out the judicial function. Judges must be appointed because judging requires particular skills and competence in understanding laws, rules, and precedents. There “can be but few men in society who will have sufficient skill in the law to qualify them for the station of judges.” When integrity is added as a qualification, the number of capable judges was thought by the framers to be even smaller. Lifetime terms are essential because judges who “hold their offices by a temporary commission” cannot be expected to adhere to the rights of the people and the Constitution. Term limits and reappointment would weaken the independence of judges by making them agents of those who appointed them. The job of judging is of “too great a disposition to consult popularity.” And temporary office would discourage those with this skill and integrity. The framers further protected federal judges and protected their independence by ensuring, in Article III, Section 1, that judges’ salaries could not be reduced while serving. The framers believed that this safeguard was necessary to ensure that judges remained free to exercise their judgment without fear of reprisal from the political branches. In sum, the judicial function is to interpret the law; lawmaking and execution should be left to the politicians.