Constitution 101: Separation of Powers

The Constitution creates three branches of government, but boundaries between the branches are sometimes fuzzy. Do bureaucratic agencies and “activist” judges violate separation of powers? Find out in part 13 of Legal Lad’s series about the U.S. Constitution.

Adam Freedman
January 18, 2013

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Today’s Topic: Constitution 101 – Separation of Powers

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Constitution 101

This is the 13th installment of a new series on the U.S. Constitution and the Bill of Rights. For more on the Constitution, you can check out my new book, The Naked Constitution: What the Founders Said, and Why it Still Matters.

Checks and Balances

In a previous episode of this series, we saw how the Constitution’s framers divided government power between the state and federal governments. In this episode, we look at the division of government power among different branches of government. The Constitution creates a system of three separate branches of government: legislative (Article I), executive (Article II), and judicial (Article III).  The Founding Fathers were deeply influenced by political philosophers such as Montesquieu who believed that dividing power results in checks and balances that protect individuals against potential government abuses.

Congress vs. The Executive Branch

As with many areas of constitutional law, the devil is in the details. For example, there is sometimes a fuzzy line between the legislative function of enacting laws and the executive function of implementing laws. At times, Congress will pass legislation that is purposely vague, leaving it up to the executive branch to write up detailed (and often unpopular) regulations. Under the non-delegation doctrine (articulated by the Supreme Court in J.W. Hampton, Jr., & Co. v. United States (1928)), Congress cannot delegate its legislative duties to the executive. Instead, Congress’s legislation must provide federal agencies with an “intelligible principle” upon which to base regulations. In practice, Courts rarely, if ever, strike down legislation as a violation of this doctrine. Many federal agencies operate today under very broad mandates from Congress.


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