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Federal Powers and Separation of Powers - Further Readings

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Preamble
Best known for the inspiration of its Preamble, the Constitution of the United States is the official document that formed the structure and operation ofthe federal government. The framers who drafted the Constitution presented iton 17 September 1787, over eleven years after the U.S. had declared its independence from Great Britain. With it they sought "to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty" for the people of the new United States. These objectives were the product of muchdebate concerning the necessary elements of a fair system of government, a debate that grew out of America's experience under the monarchy of Great Britain.
The Tyranny of the Monarchy
Great Britain had operated the American colonies under an economic concept called mercantilism. Under mercantilism, Great Britain expected the colonies toexport raw materials such as food, timber, and furs at low prices while importing finished products at higher prices. Mercantilism worked best for GreatBritain if the colonies were prohibited from trading with other countries. The colonies, however, often failed to remit taxes, and tended to trade with other countries in a manner favorable to their own economic development.
After the French and Indian Wars ended in 1763, leaving Great Britain in heavy debt, the British Parliament embarked on a mission to bring the colonies under strict financial control. The result was a series of legislation that became known as the Intolerable Acts. This legislation included the Stamp Act of1765 and led to the American rallying cry "No taxation without representation." The colonists ultimately reacted to Britain's financial campaign with revolt, and the Revolutionary War ensued.
The Articles of Confederation
Prior to the war, the colonists formed the First Continental Congress in September of 1774 to send a message to Great Britain that they would not toleratedeprivation of their life, liberty, and property. There was no real effort,however, to form a central government until the Second Continental Congress approved the Articles of Confederation in 1777. While the Articles establisheda national legislature with a one vote per state system, it only succeeded in forming a loose collection of states, not a strong national government. Thelatter did not occur until after Britain agreed to recognize colonial independence in the Treaty of Paris in 1783.
Constitution of the United States
The Constitutional Convention met in Philadelphia on 25 May 1787 with the intention to revise the Articles of Confederation. After much debate and compromise, the framers decided to create a stronger central government with three branches--legislative, executive, and judicial. The framers based this structure on the separation of powers, a concept developed by the eighteenth centuryphilosopher Montesquieu. Montesquieu's theory was that tyranny usually results when power is concentrated in a single government body. After their experience with Great Britain, the framers intended to balance power among variousbodies, resulting in a fairer government.
The details led to conflict over the power to be divided. Virginia submitteda plan for a bicameral (two-house) legislature whose representatives would beelected by the states based on their population. This proposal favored heavily populated states. New Jersey countered with a plan for a unicameral (one-house) legislature based on equal representation for all states. The New Jersey plan gave less populated states an equal voice in federal government. The resolution of this conflict became known as the Connecticut Compromise. The framers agreed to a bicameral legislature with a Senate based on equal representation for the states and a House of Representatives based on the populationof each state.
Legislative Department
Article I of the Constitution created the legislative department, also knownas Congress, comprised of the Senate and the House of Representatives. The Senate contains 100 members, two from each of the 50 states. While originally elected by their state legislatures, senators today are elected by the peopleand serve six year terms, with one third of the Senate up for reelection every two years. Through legislation in 1929, Congress set the total number of representatives in the House at 435. The people elect their representatives every two years, with the national census determining the number of representatives for each state.
Congress' enumerated powers and restrictions are more detailed than for any other branch, probably because the framers were most concerned with abuse of legislative power. Under the Taxing and Spending Clause, Congress may "lay andcollect taxes, duties, imports, and excises, to pay the debts and provide for the common defense and general welfare of the United States." Domestically,the Commerce Clause gives Congress exclusive authority to regulate anythingthat has the slightest effect on, or connection with, commerce that crosses state boundaries. Internationally, Congress may regulate foreign affairs through its power to raise and finance an army and navy, declare war, and regulateforeign commerce. Congress also may enact any law "necessary and proper" forcarrying out its enumerated powers. This has been called the "elastic clause" because it allows Congress to enact any law for which it has a plausible justification under its specified powers.
Influenced by the Intolerable Acts, however, the framers carefully formulatedrestrictions on Congress' power. Except in the cases of rebellion or invasion, Congress cannot eliminate the right to a writ of habeas corpus, which is a court order requiring an explanation of why a prisoner is being held.Congress also may not pass a bill of attainder, which is a law imposing punishment without trial on a specific individual. Finally, Congress may not passan ex post factolaw, which retroactively declares an act to be criminal. Other major restrictions appeared later in the First Amendment to the Constitution, contained within the Bill of Rights and adopted in 1791. Under theFirst Amendment, Congress may not pass legislation establishing, forbidding,or governing religion. Congress also may not abridge the freedom of speech,freedom of the press, the right of peaceful assembly, and the right to petition government for a redress of grievances.
Executive Department
Article II of the Constitution vests the executive power, the power to enforce the law, in the President of the United States. The only legal requirementfor the positions that one must be a natural born citizen over 35 years of age who has resided in the U.S. for at least 14 years. The president serves a four year term and is limited by law to two such terms. Although the nation votes on election day, the Electoral College technically selects the president.Each state appoints Electors to the College equal to the state's total representatives and senators in Congress. The Electors may select any person to bepresident, but traditionally vote in accordance with the majority of the popular vote in their state.
The Constitution says surprisingly little about the specific powers and duties of the president. Perhaps this reflects the framer's reluctance to concentrate federal power in one person. Only through constitutional interpretation,custom, and necessity has the position developed into one of considerable power. As the commander-in-chief, the president has ultimate control over the army and navy. This curious role for a nonmilitary person was a reaction to Britain's tendency to "render the Military independent of, and superior to, theCivil power." Presidents traditionally have used this power to effect considerable influence over foreign affairs, such as with President Bush's deployment of troops during the Persian Gulf War. The president also has the power tomake treaties (with the advice and consent of the Senate).
Domestically, the president has the duty to "take care that the laws be faithfully executed." The president delegates many of these duties to the executive agencies, such as the Department of Justice, which are headed by the members of the president's cabinet. Finally, the president has the duty to "give tothe Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient." The president thus becomes actively involved in proposing and shaping national legislation, including the national budget.
If the president becomes unable to fulfill his duties, the vice-president takes his place. Until then, the vice-president has only one constitutional duty--he serves as president of the Senate and votes if the Senate is equally divided. Otherwise the vice-president typically chairs various commissions and represents the U.S. at domestic and foreign ceremonies and occasions. Significantly, however, the vice-presidency has become a stepping stone to the presidency. In the twentieth century, seven vice-presidents eventually have becomepresident--Theodore Roosevelt, Calvin Coolidge, Harry Truman, Lyndon Johnson,Richard Nixon, Gerald Ford, and George Bush.
Judicial Department
The Articles of Confederation had not created a national judiciary. Instead,state courts heard cases involving federal law, resulting in inconsistency and confusion. The framers rectified this by vesting federal judicial power inthe Supreme Court and "such inferior courts as the Congress may from time totime ordain and establish." By statute Congress has created a three-tiered judicial system with district courts at the bottom, courts of appeal in the middle, and the Supreme Court at the top. There are eleven courts of appeal corresponding to eleven geographical regions, each of which contains a number ofjudicial districts. Cases generally are tried in the district courts, appealed to the courts of appeal, and then appealed to the Supreme Court as a last resort. Only cases involving ambassadors, other public ministers and consuls,and those in which a state is a party may be brought directly before the Supreme Court without going through a district court or court of appeals.
The Constitution specifically enumerates the types of cases that may come before the federal courts. First and foremost are cases arising under the Constitution, the laws of the United States, and treaties. The federal courts alsomay hear cases of maritime and admiralty jurisdiction, which means cases arising on the navigable waters of the United States. Federal judicial power alsoextends to cases in which the United States is a party and cases between twoor more states, between a state and citizens of a different state, and between citizens of different states.
Federal courts generally determine guilt or innocence in criminal or civil cases. Criminal cases involve enforcement of the criminal laws. Civil cases involve disputes between private parties. In addition, the courts have authorityto issue writs of habeas corpus, a power the Constitution specifically prohibits Congress from taking away. The courts also may issue writs of mandamus, which force government officials to carry out their public duty. The courts also issue arrest and search warrants in accordance with the Fourth Amendment. An important constitutional limitation on all of these powersis that the federal courts may act only in actual cases or controversies. This means they may not issue opinions in the absence of an actual legal dispute.
The Fourth Branch?
Although not created by the Constitution, independent executive agencies sometimes are called the fourth branch of the federal government. They arose in the wake of the Industrial Revolution and typically are charged with regulating areas of big business. Congress creates independent agencies with legislation, and the president selects the agency head with the advice and consent ofthe Senate. Unlike cabinet members, who serve at the president's whim, independent agency heads can be removed from office only for cause and serve for afixed number of years.
Curiously, the independent executive agencies usually have powers that resemble all three branches of federal government. They serve as legislative bodieswhen they enact their own regulations. The Environmental Protection Agency,for example, enacts regulations limiting pollution emissions by industry. Independent agencies also have executive functions, such as when the InterstateCommerce Commission checks to ensure that trucks have proper safety features.Finally, the independent agencies act like courts when they hold hearings and issue fines for violations of their regulations. Their powers, however, arenot unlimited. Congress may alter, amend, or appeal legislation delegating authority to an agency. The president may remove the head of an agency for cause. The courts may declare agency action to be unconstitutional or outside the grant of authority from Congress.
Checks and Balances
Separation of powers is not the only defining concept in the Constitution. The framers also were concerned with the potential for abuse of the power theydivided. To limit such abuse, they built checks and balances into the system.Each branch thus serves as a watchdog over the others.
The president checks Congress in many informal ways, such as refusing to usepower delegated to the executive branch by Congress. His primary tool, however, is the power to veto legislation. Congress, in turn, may override a presidential veto with a vote by two thirds of both houses. Congress further checksthe president by determining the executive budget. Congress has the authority to confirm various presidential appointees, such as cabinet members, judges, and ambassadors. Finally, Congress has the power to impeach all nonmilitarymembers of the executive branch, including the president.
The president checks the courts by appointing all federal judges, including the Supreme Court justices. Because judges are appointed for life, the president thus may influence the federal judiciary for years after his term expires.With the power of judicial review, the judiciary checks the president by reviewing executive orders and agency actions for their constitutionality. If acourt finds an action unconstitutional, it is void.
The judiciary similarly checks Congress by reviewing legislation in particular cases for its constitutionality. Congress checks the judiciary with the theoretical power to eliminate all federal courts except the Supreme Court. Congress also influences the judiciary by confirming or rejecting the president'sjudicial nominees. Recent battles over nominees such as Robert Bork and Clarence Thomas are examples of this power.
The Tenth Amendment
Soon after the creation of a strong central government, Congress decided to clarify that the framers never intended to eliminate entirely the authority ofthe states. In the Bill of Rights, proposed by Congress in 1789, the Tenth Amendment provides that "the powers not delegated to the United States by theConstitution, nor prohibited by it to the States, are reserved to the Statesrespectively, or to the people." This provision is the cornerstone of an ongoing battle between federal and state authority. If the framers improved on the monarchy of Great Britain, they certainly did not eliminate the power struggles inherent in national government.
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