Explain the principle and practice of the separation of powers.

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  • Separation of powers is the distribution of political authority that provides a system of checks and balances to ensure that no single branch becomes too powerful or infringes on the rights of the citizens.
  • The 18th-century French enlightenment thinker Montesquieu coined the term separation of powers.
  • In the US there are separate branches of government with distinct responsibilities. Power is separated through national and state governments and power is then further divided amongst the three branches of national government; the executive who enforce the law, legislature who make the law and judiciary who interpret the law. 
  • Those powers not assigned to the central government in the Constitution are reserved and so left to the states, unless the states are specifically denied certain powers.
  • Better understood in the USA as a theory for shared powers: the institutions are separate while the powers are shared through an elaborate system of checks and balances. 
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Branches of government

  • Power within the central government is also separated into and carried out by three branches: the legislative, the executive and the judicial branches.
  • The legislative branch is a two house Congress, also known as a bicameral legislature, made up of the Senate and the House of Representatives.
  • The executive branch has the power to carry out and enforce federal laws using federal departments and agencies, a cabinet and regulations. The president is the chief executive of this branch, which also oversees the military.
  • The judicial branch is comprised of federal courts and has the power to interpret federal laws by hearing arguments about the meaning of laws and how they are carried out. The Supreme Court also has the power of judicial review, which is the ability to determine if a law or executive act is in agreement with the Constitution or not.
  • To ensure that limited government could prevail, the Founding Fathers introduced a separation of personnel – No person can be in more than one branch of government. Obama had to resign from the Senate after being elected President in 2009. Hilary Clinton also had to resign from the Senate in order to join Obama’s cabinet.
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  • Richard Neustant argues that there is not a separation of powers but there are separation institutions sharing powers.
  • Over time the federal government have taken powers that should, under the constitution, belong to the states and made them federal issues – this has undermined the separation of powers.
  • Examples of this are 1973 Roe vs. Wade where the federal government stated that abortion is legal in all states however as this wasn’t in the constitution it should have been left to the states. Further, in 2015 Obergefell vs. Hodges ruled gay marriage legal in all states presenting the same issue.
  • Through the separation of powers, in theory, it stops power being too concentrated and there is no overlap of personnel and so ensuring limited government. 
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