Separation of Powers between the Executive and Judicial Branch - Term Paper Example

? The balance of powers between Congress (House and Senate), the President and the Judiciary, is one of the cornerstones of the US system of government. By 'balance', it is implied that providing each a certain amount of power, no single element can act with impunity and authority in a way that challenges the principles of a democratic union. This paper will examine the principals and the practice of the balance of powers, with a particular eye to Executive versus the Judicial branch. The notion of factionalism will be provided as the background for the balance of powers, followed by a brief overview of how these powers are defined, and then, an analysis of the Executive versus the Judiciary. It will be argued that while there are some limitations in the Executive/Judiciary relation, these limitations are also anticipated and addressed by further checks and balances. The roots of the balance of powers, lies with the American father's concern with factionalism. The Federalist papers, which numbered eighty-five, were written as theoretical defense's of the amendments to the Constitution, and they represent the justification for the notion of a 'balance of powers'. Federalist paper number ten specifically deals with the question of "factions", and was written by James Madison (Epstein 102). The most concise definition of a faction, might be phrased as a group with a central and discernible purpose, who are perceived to threaten the structures and powers of that which is protected or enshrined in the Constitution. In particular, the largest threat is articulated in terms of the potential dangers of those who advocate the "abolition of debts, for an equal division of property, or for any other improper or wicked project" [Boller 71], which is what he describes as the "most common and durable source" of factions [Boller 69]. Because Madison thinks liberty ought to be protected, and because he claims that dissension is "sown in the nature of man" [Boller 69]-- that is, people who are contrary will always exist, Madison advocates that one cannot remove the "causes", but instead one can only "control the effects" [Boller 70]. That is, if the causes are liberty and one does not want to remove liberty, then, one cannot control the causes. And, if dissension or difference is natural in humans, and one cannot remove an aspect of human nature, then, one cannot in this sense remove this causal aspect either. By a Republic as opposed to a democracy, Madison simply implies that representatives of the people as opposed to the people themselves are those who control the political spectrum. And, as representatives he claims that these figures will (in theory) be those who embody "wisdom", "patriotism", and a "love of justice" [Boller 70]. The American form of government is that of a ‘republic’, and it is the principal means by which the constitutional fathers thought that single factions could be challenged. This is marked by a number of variables which are written into the American Constitution which ensures the ‘Balance of Powers’. In brief, the balance is broken down into the ‘executive’, ‘legislative’ and ‘judicial’ branches [Woll 4]. And, there is a balance between these branches with respect to passing or accepting legislative bills. In the United States, the President and every member of both houses is elected for a fixed term: the President for four years, the senators for six (one-third retiring every two years), the members of the House of Representatives for two [Schmidt, Shelley Bards and Ford 68]. The only way to get rid of a president before the end of the four-year term is to impeach him (her), which is very hard to do, and has never been done and only twice even attempted. As the President, the senators and the representatives are elected for different periods, it can happen, and often does, that the President belongs to one party while the opposing party has a majority in either the Senate or the House of Representatives or both. So for years on end, the President may find his (her) legislation and policies blocked by an adverse majority in one or both houses. The President cannot appeal to the people by dissolving either house, or both: he (she) has no such power, and the two houses are there for their fixed terms, come what may, until the constitutionally fixed hour strikes [Woll 13]. And even when the elections for the presidency, the House of Representatives, and one third of the Senate take place on the same day (as they do every four years), the result may be a Republican president, a Democratic Senate and a Republican House of Representatives or various other mixtures. A president, accordingly, may have a coherent program to present to Congress, and may get senators and representatives to introduce the bills he (she) wants passed. But each house can add to each of the bills, or take things out of them, or reject them outright, and what emerges from the tussle may bear little or no resemblance to what the President wanted. The majority in either house may have a coherent program on this or that subject; but the other house can add to it, or take things out of it, or throw the whole thing out; and again, what (if anything) emerges may bear little or no resemblance to the original. Even if the two houses agree on something, the President can, and often does, veto the bill. The veto can be overridden only by a two thirds majority in both houses [Jandra, Berry and Goldman 362]. Thus, a dissatisfied voter can vote against a president, a representative or a senator. But no matter what the voters do, the situation remains essentially the same. The President is there for four years and remains there no matter how often either house produces an adverse majority. If, halfway through the President's four year term, the elections for the House and Senate return adverse majorities, the President still stays in office for the remaining two years with enormous powers. And he (she) cannot get rid of an adverse House of Representatives or Senate by ordering a new election. The adverse majority in one or both houses can block many things the President may want to do, but it cannot force him (her) out of office. The President can veto bills passed by both houses. But Congress can override this veto by a two-thirds majority in both houses. The House of Representatives can impeach the President, and the Senate then tries him (her), and, if it so decides, by a two-thirds majority, removes him (her) [Woll 213]. No president has ever been removed, and there have been only two attempts to do it. In one, the Senate majority was too small; in the other, the President resigned (Nixon) before any vote on impeachment took place in the House of Representatives [Woll 262]. What is important in this regard, is the extent to which the President's authority really do lie beyond the reach of the Judicial branch. Both the impeachment and the passing of legislation, are powers that are not checked by appointed judges, but only insofar as this might impact the Constitution. This has to do with the principal of Judicial Review [Woll 8], and, although members of the Supreme Court are political appointments, it is generally the case that among the eight members there are individuals who represent both party agendas. This has been actually a product of circumstance, given that there has been a cycle of government change reflective of a change in Parties. In other words, during a phase where democratic Presidents are in office, appointments to the Supreme Court have reflected that office. Likewise, in cycles where there is a Republican President. One of the limitations of this, is the essentially undemocratic nature of appointments. That is, appointments are made by representatives of the people, but not the people themselves. The limitations of judicial appointments are pretty significant and represent one of the important conflicts between in the judicial and executive branch. Because the judges are important, they are often selected because their views are generally believed to be harmonized with those of the executive. This is significant, for example, where the executive branch or President, might be against abortion or any such-like controversial. Typically, the executive branch does select its judges with a bias, and one of the checks and balances that is in place is that they have to be “confirmed by the Senate”. A further check and balance, is that Congress can impeach a judge in circumstances that are viewed as necessary. While the executive branch can be said to influence the judicial branch through the appointments process, the judicial branch represents a significant challenge to the executive branch on a number of important levels. Their primary function is that of “judicial review”. Judicial review was one of the first and most significant additions to the constitution. It emerged out of a case known as “Marbury vs. Madison” and happened when Chief Justice of the Supreme Court was John Marshall. The background to the case concerns the Judiciary Act of 1801. In this Act, the process was created for the appointments of a variety of District and Circuit Judges. William Marbury was appointed as the Justice of the Peace for the District of Columbia. However, when the government changed hands and Jefferson became President, he vetoed the appointment, and Marbury consequently sued. The Supreme Court faced a problem. If it had just confirmed the Presidents position, it would have undermined its own authority and in turn, created a precedent for a weak judicial branch. What resulted, was a ruling against Marbury but on a technicality rather than simply affirming the authority of the executive branch. Regardless of the actual details of the case, or the controversy of the decision, what is important is that the establishment of the Supreme Court in decisions that effect or are determined by the Constitution. In terms of the relationship between the Executive and the Judicial branch, their power to adjudicate on Constitutional matters is unquestionably one of the most significant. Likewise, it is an area where their authority has been a factor in US history on numerous occasions. The need to challenge factions is premised on the idea that individuals and groups act out of self-interest. The balance of powers, is the way by which the self interest of one group is kept in check by another. Between the Judiciary and the Executive, it has been argued that Judicial review is one way which the self-interest of the president can be challenged, and likewise, it was argued that self-interest is one of the ways in which appointments are made by the Executive itself. However, this self-interest is challenged outside of both branches and that the Senate has an important role in checking the self-interest or factionalism of the President in his appointment of Supreme Court judges. The balance of powers is critical to democracy, and because it is a system where representatives serve the interest of the people. As representatives of the people and not the people themselves, their authorities are balanced by the structures inherent of the three branches of government. Bibliography: Boller, Paul F. Jr., and Story, Ronald.(1992). A More Perfect Union. Documents in U.S. History. Volume I: To 1877. Third Edition. Boston: Houghton Mifflin Company. Epstein, David F. (1984). The Political Theory of the Federalist. Chicago: The University of Chicago Press. Janda, Kenneth, Berry, Jeffrey, and Goldman, Jerry. (2008). The Challenge of Democracy: Government in America. Boston: Houghton Mifflin. Schmidt, Steffen, Shelley, Marc and Bardes, Barbara, and Ford, Lynn. (2011). American and Government Politics Today. Boston: Wadsworth. Woll, Peter. (1986). Constitutional Democracy. Second Edition. Boston: Allyn & Bacon. Read More