Separation of Powers of Government


The U.S. Constitution does not have an express provision mandating the separation of powers among the three branches of government (the legislative, executive, and judicial)[i].  Nevertheless, the doctrine of separation of powers is fundamental to the U.S. Government.  The separation of powers is recognized as part of the federal constitutional system[ii].  The doctrine provides, in part, that the persons entrusted with power in any one of the branches of government are not permitted to interfere with the powers confided to others[iii].  Doctrine of separation of power prevents one branch of the government from exercising or invading the powers of another.  Thus, legislative powers are confided to the legislature, executive powers to the executive department, and judicial powers to the judiciary.

The concept of separation of powers embodied in the U.S. Constitution is not mandatory in state governments[iv].  A state constitution may unite legislative and judicial powers in a single entity without any restraint from the Constitution of the U.S.[v].

In United States v. Sparks, 687 F. Supp. 1145 ( E.D. Mich. 1988), the court held that the separation of powers doctrine may be violated in two ways: 1) when one branch prevents or interferes with another branch’s fulfillment of its constitutionally assigned function; or 2) when one branch assumes power which is constitutionally allocated to another branch.

In Sylvester v. Tindall, 154 Fla. 663 (Fla. 1944), the court held that the exercise of some authority, discretion, or judgment may be incident or necessary to the performance of administrative or ministerial duties.  However such authority, discretion, or judgment is subject to judicial review.  Such judicial review is not a violation of doctrine of separation of powers.

The legislative branches of government have granted to administrative bodies, judicial, executive and legislative powers[vi].  Legislative authority is delegated to an administrative body by the guidelines set forth in the statute that created the administrative body[vii].  In Parcell v. Kansas, 468 F. Supp. 1274 (D. Kan. 1979), the court held that strict application of the separation of powers doctrine is inappropriate since administrative agencies exercise many types of power including legislative, executive, and judicial powers.

Congress may control the execution of its enactment only indirectly, by passing new legislation.  Separation of powers is violated when Congress tries to control the execution of its enactment directly, instead of indirectly by passing new legislation[viii].  Although, Congress is able to delegate its powers to administrative agencies, Congress may not constitutionally control the administration of the laws by way of a congressional veto[ix].

[i] United States v. Mardis, 2009 U.S. Dist. LEXIS 109112 (W.D. Tenn. Nov. 23, 2009)

[ii] id

[iii] id

[iv] Printz v. United States, 521 U.S. 898 (U.S. 1997)

[v] Keller v. Potomac Electric Power Co., 261 U.S. 428 (U.S. 1923)

[vi] Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 (Ky. 1939)

[vii] Unified School Dist. No. 279 v. Secretary of Kansas Dep’t of Human Resources, 247 Kan. 519 (Kan. 1990)

[viii] Bowsher v. Synar, 478 U.S. 714 (U.S. 1986)

[ix] Ins v. Chadha, 77 L. Ed. 2d 317, 349 (U.S. 1983)