Separation of Powers: A System of Checks and Balances

Because, 'All Men Having Power Ought be Mistrusted.'

USA, Washington DC, Capitol building at dusk
Capitol building, Washington DC. Dennis Flaherty/DigitalVision/Getty Images

The framers of the U.S. Constitution built a system of “separation of powers” through “checks and balances” into the document to ensure that no single person or branch of the new government could ever become too powerful.

Men like James Madison knew all too well from hard experience the dangers of things like despotic kings. Or as Madison himself put it, “The truth is that all men having power ought to be mistrusted.”

Madison and his fellow framers believed that in creating any government administered by humans over humans, “You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

Three Branches, Separate But Equal

In the provision of the three branches of governmental power – legislative, executive, and judicial – into the Constitution, the framers built their vision of a stable federal government as assured by a system of separation of powers with checks and balances.

As Madison wrote in the Federalist Papers No. 51, published in 1788, “The accumulation of all powers, legislative, executive and judicial in the same hands, whether of one, a few, or many, and whether hereditary, self–appointed, or elective, may justly be pronounced the very definition of tyranny.”

In both theory and practice, the power of each branch of American government is held in check by the powers of the other two in several ways.

For example, while the President of the United States (executive branch) can veto laws passed by Congress (legislative branch), Congress can override presidential vetoes with a two-thirds vote of both houses.

Similarly, the Supreme Court (judicial branch) can nullify laws passed by Congress by ruling them to be unconstitutional.

However, the Supreme Court’s power is balanced by the fact that its presiding judges must be appointed by the president with the approval of the Senate.

Specific examples of separation of powers through checks and balances include:

Executive Branch Checks on the Legislative Branch

  • President has the power to veto laws passed by Congress
  • Can proposes new laws to Congress
  • Submits the Federal Budget to the House of Representatives
  • Appoints federal officials, who carry out and enforce laws

Executive Branch Checks on the Judicial Branch

  • Nominates judges to the Supreme Court
  • Nominates judges to the federal court system
  • President has the power to pardon or grant amnesty to persons convicted of crimes

Legislative Branch Checks on the Executive Branch

  • Congress can override presidential vetoes with a 2/3 vote of both chambers
  • Senate can reject proposed treaties with a 2/3 vote
  • Senate can reject presidential nominations of federal officials or judges
  • Congress can impeach and remove the president (House serves as prosecution, Senate serves as jury)

Legislative Branch Checks on the Judicial Branch

  • Congress can create lower courts
  • Senate can reject nominees to the federal courts and Supreme Court
  • Congress can amend the Constitution to overturn decisions of the Supreme Court
  • Congress can impeach judges of the lower federal courts

Judicial Branch Checks on the Executive Branch

  • Supreme Court can use the power of judicial review to rule laws unconstitutional

Judicial Branch Checks on the Legislative Branch

  • Supreme Court can use the power of judicial review to rule presidential actions unconstitutional
  • Supreme Court can use the power of judicial review to rule treaties unconstitutional

But Are the Branches Truly Equal?

Some people argue that there are more checks or limitations on the power of the legislative branch than over the other two branches. For example, both the executive and judicial branches can override or nullify the laws it passes. While they are basically correct, it is how the Founding Fathers intended.

Our system of separation of powers through checks and balances reflects the Founders’ interpretation of a republican form of government in which the legislative or lawmaking branch, as the most powerful branch, must also be the most restrained.

The Founders believed this because the Constitution grants “We the People” the power to govern ourselves through the very laws we demand of the representatives we elect to the legislative branch.

Or as James Madison put it in Federalist No. 48, “The legislative derives superiority… [i]ts constitutional powers [are] more extensive, and less susceptible to precise limits… [it] is not possible to give each [branch] an equal [number of checks on the other branches]”