Separation of powers under the United States Constitution
During the Age of Enlightenment, philosophers such as Montesquieu advocated the principle in their writings, whereas others, such as Thomas Hobbes, strongly opposed it.
In this vein, the Supreme Court held in the 1998 case Clinton v. City of New York that Congress could not delegate a "line-item veto" to the President, by powers vested in the government by the Constitution.
While Chief Justice John Marshall conceded that the determination of rules of procedure was a legislative function, he distinguished between "important" subjects and mere details.
the president becomes the Commander in Chief of the Army and Navy, Militia of several states when called into service, has power to make treaties and appointments to office "with the Advice and Consent of the Senate," receive Ambassadors and Public Ministers, and "take care that the laws be faithfully executed" (Section 3.)
In Immigration and Naturalization Service v. Chadha (1983), the Supreme Court decided (a) The prescription for legislative action in Art.
Legislative courts may only adjudicate "public rights" questions (cases between the government and an individual and political determinations).
[4] However, only the Congress is explicitly granted the power to declare war per se, as well as to raise, fund and maintain the armed forces.
Congress also has the duty and authority to prescribe the laws and regulations under which the armed forces operate, such as the Uniform Code of Military Justice, and requires that all Generals and Admirals appointed by the president be confirmed by a majority vote of the Senate before they can assume their office.
The only constitutional limit on Congress' power to set the jurisdiction of the judiciary relates to the Supreme Court; the Supreme Court may exercise only appellate jurisdiction except in cases involving states and cases affecting foreign ambassadors, ministers or consuls.
McCulloch v. Maryland, decided in 1819, established two important principles, one of which explains that states cannot make actions to impede on valid constitutional exercises of power by the federal government.
Implied powers are used to keep the regulation of taxes, the draft, immigration, protection of those with disabilities, minimum wage, and outlaw discrimination.
Congress's inherent powers are used to control national borders, deal with foreign affairs, acquire new territories, defend the state from revolution, and decide the exclusion or establishment of aliens.
Concurrent powers makes it so that both federal and state governments can create laws, deal with environmental protection, maintain national parks and prisons, and provide a police force.
The states are then responsible for maintaining the relationships with the Native Americans on those reservations and to honor the treaties that were previously made by the federal government.
However, James Madison wrote in Federalist 51, regarding the ability of each branch to defend itself from actions by the others, that "it is not possible to give to each department an equal power of self-defense.
In fact, its power to exercise judicial review—its sole meaningful check on the other two branches—is not explicitly granted by the U.S Constitution.
The U.S. Supreme Court exercised its power to strike down congressional acts as unconstitutional only twice prior to the Civil War: in Marbury v. Madison (1803) and Dred Scott v. Sandford (1857).
Furthermore, he defied the Supreme Court in enforcing the policy of ethnically cleansing Native American tribes ("Indian Removal"); he stated (perhaps apocryphally), "John Marshall has made his decision.
When Johnson deliberately violated the Act, which he felt was unconstitutional (Supreme Court decisions later vindicated such a position), the House of Representatives impeached him; he was acquitted in the Senate by one vote.
Some believed that the president would become a mere figurehead, with the Speaker of the House of Representatives becoming a de facto prime minister.
The Senate, however, refused to confirm many new nominations, instead demanding that Cleveland turn over the confidential records relating to the suspensions.
Theodore Roosevelt, for instance, claimed that the president was permitted to do whatever was not explicitly prohibited by the law—in direct contrast to his immediate successor, William Howard Taft.
The aforementioned Schechter Poultry Corp. v. United States, another separation of powers case, was also decided during Franklin Roosevelt's presidency.
He asserted, for example, that "the inherent power of the President to safeguard the security of the nation" authorized him to order a wiretap without a judge's warrant.
Nixon also asserted that "executive privilege" shielded him from all legislative oversight; furthermore, he impounded federal funds (that is to say, he refused to spend money that Congress had appropriated for government programs).
Since then, Nixon's successors have sometimes asserted that they may act in the interests of national security or that executive privilege shields them from Congressional oversight.
Many political scientists believe that separation of powers is a decisive factor in what they see as a limited degree of American exceptionalism.
In particular, John W. Kingdon made this argument, claiming that separation of powers contributed to the development of a unique political structure in the United States.
[citation needed] Separation of powers has again become a current issue of some controversy concerning debates about judicial independence and political efforts to increase the accountability of judges for the quality of their work, avoiding conflicts of interest, and charges that some judges allegedly disregard procedural rules, statutes, and higher court precedents.
On the other side of this debate, many judges hold the view that separation of powers means that the Judiciary is independent and untouchable within the judicial sphere.
