# 2.2: Separation of Powers

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Under the US Constitution, power is separated among three branches of government. Article I of the Constitution allocates the legislative power to Congress, which is composed of the House of Representatives and the Senate. Congress makes laws and represents the will of the people. Article II of the Constitution creates the executive power in the president and makes the president responsible for enforcing the laws passed by Congress. Article III of the Constitution establishes a separate and independent judiciary, which is in charge of applying and interpreting the meaning of the law. The US Supreme Court is the highest court in the federal judiciary and consists of nine Justices.

Figure 2.1 Separation of Powers of the Branches of the Federal Government

The Constitution is remarkably short in describing the judicial branch. Under the Constitution, there are only two requirements to becoming a federal judge: nomination by the president and confirmation by the Senate. Article III provides: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The Constitution also guarantees that how judges decide cases does not affect their jobs because they have lifetime tenure and a salary that cannot be reduced.

Separation of powers is discussed in more detail in Chapter 5.

In 1800, the presidential election between John Adams and Thomas Jefferson nearly tore the nation apart. John Adams was the President and his Vice-President, Thomas Jefferson, ran against him. They were both Founding Fathers but were members of different political parties that had opposing visions for the future of the new nation. The election was bitter, partisan, and divisive. Jefferson won but wasn’t declared the winner until early in 1801. In the meantime, Adams and other Federalists in Congress attempted to leave their mark on government by creating a slate of new life-tenured judgeships and appointing Federalists to those positions. For the judgeships to become effective, official commissions had to be delivered in person to the new judges. At the time power transitioned from Adams to Jefferson, several commissions had not been delivered, and Jefferson ordered his acting secretary of state to stop delivering them. When Jefferson came to power, there was not a single federal judge from his Democratic-Republican Party, and he refused to expand the Federalist influence any further.

One Federalist judge, William Marbury, sued Secretary of State James Madison to deliver his commission. The case was filed in the Supreme Court, led by Chief Justice John Marshall, who was also a Federalist. In a shrewd move, Marshall ruled against Marbury while declaring that it was the Supreme Court’s role to decide the meaning of the Constitution. This is called judicial review, and it makes the US Supreme Court an equal branch of government to the Executive and Legislative branches. Because President Jefferson won the case, he was willing to accept the Supreme Court’s assertion of power as an equal branch of government.

## Checks and Balances

The US Constitution establishes the three branches of the federal government as independent branches with their own authority. The Founding Fathers were fearful of setting up an authoritarian regime, where the rulers of the government are above the law and often rule arbitrarily. Therefore, the Founding Fathers ensured that each branch of government had a “check” on the other two branches in order to “balance” the power of the government among the branches. Therefore, if a president decided to become a dictator, the other two branches could prevent him.

Figure 2.2 Checks and Balances of the Federal Government

Judicial review means that any federal court can hold any act of the president or Congress to be unconstitutional. This is the power of the Judicial Branch to ensure that the Executive and Legislative branches do not overstep their powers and violate the Constitution.

The other branches each have a “check” on the judiciary. For example, the president (Executive branch) can control the judiciary by nominating judges. The president can also pardon those convicted by a federal court. A pardon is an executive order vacating a criminal sentence for a crime.

Congress also plays an important role in “checking” the judiciary. The most obvious role is in confirming judicial selections. In addition to confirmation, Congress also controls the judiciary through its annual budgetary process. Although the Constitution protects judicial salaries from any reductions, Congress is not obligated to grant any raises. Finally, Congress can control the judiciary by determining how the courts are organized and what kind of cases the courts can hear, except for the types of cases the Constitution lists as the original jurisdiction of the Supreme Court.

This page titled 2.2: Separation of Powers is shared under a CC BY 4.0 license and was authored, remixed, and/or curated by Melissa Randall and Community College of Denver Students via source content that was edited to the style and standards of the LibreTexts platform; a detailed edit history is available upon request.