What does separating the executive branch from the legislative branch prevent?

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The U.S. Constitution establishes three separate but equal branches of government: the legislative branch (makes the law), the executive branch (enforces the law), and the judicial branch (interprets the law). The Framers structured the government in this way to prevent one branch of government from becoming too powerful, and to create a system of checks and balances.

Under this system of checks and balances, there is an interplay of power among the three branches. Each branch has its own authority, but also must depend on the authority of the other branches for the government to function.

U.S. v. Alvarez is an excellent example of how the three branches each exercise their authority.

In a Nutshell

• The Legislative Branch – Congress – passed the Stolen Valor Act of 2005, punishing those who misrepresent that they have received high military honors.
• The Judicial Branch – the Supreme Court of the United States – ruled in 2012 that the Act was unconstitutional because it infringed on the right to free speech protected by the First Amendment.
• The Executive Branch – the Pentagon and the President – took action within a month of the Supreme Court's decision establishing a government-funded national database of medal citations – phased in over time – to enable verification of military honors.
• The Legislative Branch – Less than a year after Alvarez was decided, Congress responded with legislation that sought to remedy the constitutional problems in the 2005 legislation, which the Supreme Court decided in U.S. v. Alvarez were in violation of the First Amendment.

  The new legislation continues the prohibition on false claims of military honors in instances outside the protection of the First Amendment. However, the Stolen Valor Act of 2013 narrowed the original legislation in the following ways:

  • Repealed the prohibition against wearing such awards without legal authorization.
  • Limited the prohibition to wearers who act "fraudulently" and "with intent to obtain money, property, or other tangible benefit."
  • Limited the prohibition to the Congressional Medal of Honor and certain, specified decorations or medals.  

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

The framers of the Constitution feared too much centralized power, adopting the philosophy of divide and conquer. At the national level, they created three different branches of government to administer three different types of power. The legislative branch made the laws through a Congress of two houses, the Senate and the House of Representatives. The executive branch enforced the laws through a president, vice president, and numerous executive departments such as Treasury and State. And the judicial branch interpreted the laws through a Supreme Court and other lower courts. In the words of James Madison: “The accumulation of all powers, legislative, executive, and judiciary, 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.”

Within the separation of powers, each of the three branches of government has “checks and balances” over the other two. For instance, Congress makes the laws, but the President can veto them and the Supreme Court can declare them unconstitutional. The President enforces the law, but Congress must approve executive appointments and the Supreme Court rules whether executive action is constitutional. The Supreme Court can strike down actions by both the legislative and executive branches, but the President nominates Supreme Court justices and the Senate confirms or denies their nominations. “Ambition must be made to counteract ambition,” wrote James Madison in Federalist 51, so that each branch will seek to limit the power of the other two branches to protect its own power. Such a system makes concerted action more difficult, but it also makes tyranny less likely.

We the People content written by Linda R. Monk, Constitutional scholar

The doctrine of the separation of powers in the Westminster system is usually regarded as one of the most fundamental tenets of liberal democracy.

The doctrine of the separation of powers divides the institutions of government into three branches: legislative, executive and judicial: the legislature makes the laws; the executive puts the laws into operation; and the judiciary interprets the laws. The powers and functions of each are separate and carried out by separate personnel. No single agency is able to exercise complete authority, each being interdependent on the other. Power thus divided should prevent absolutism (as in monarchies or dictatorships where all branches are concentrated in a single authority) or corruption arising from the opportunities that unchecked power offers. The doctrine can be extended to enable the three branches to act as checks and balances on each other. Each branch’s independence helps keep the others from exceeding their power, thus ensuring the rule of law and protecting individual rights.

Under the Westminster System – the parliamentary system of government Australia adopted and adapted from England – this separation does not fully exist and the doctrine is not exemplified in the constitutions of the Australian states. However in Australia the three branches exist: legislature in the form of parliaments; executive in the form of the ministers and the government departments and agencies they are responsible for; and the judiciary or the judges and courts. However, since the ministry (executive) is drawn from and responsible to the parliament (legislature) there is a great deal of interconnection in both personnel and actions. The separation of the judiciary is more distinct.

If the object of separation of powers is to develop mechanisms to prevent power being overly concentrated in one arm of government, then in practice in Australia mechanisms for avoiding the over-concentration of power exist in many ways – through constitutions and conventions; the bicameral system; multiple political parties; elections; the media; courts and tribunals; the federal system itself; and the active, ongoing participation of citizens.

• Origins of the Doctrine
• The Doctrine in Australia - the Commonwealth
• The Doctrine in Australia - the States
  

(The information on these page comes from Separation of Powers: Doctrine and Practice by Graham Spindler which originally appeared in the publication Legal Date in March 2000).

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