The separation of powers - Federal interbranch relationships

Learning Outcomes

This article explores the fundamental principles of the separation of powers within the U.S. federal government, focusing on the relationships and checks between the legislative, executive, and judicial branches. After reviewing this material, you will understand the distinct powers granted to each branch by the Constitution, how these powers are limited, and the mechanisms through which each branch can check the others, such as impeachment, veto power, and judicial review. This knowledge is essential for analyzing MBE questions involving interbranch conflicts and limitations on governmental authority.

MBE Syllabus

For the MBE, you are required to understand the constitutional framework establishing the three branches of the federal government and the principles governing their interactions. This includes knowing the limits of each branch's power and the checks each exercises over the others. You should be prepared to:

  • Identify the distinct powers vested in Congress (Article I), the President (Article II), and the Judiciary (Article III).
  • Analyze the system of checks and balances, including legislative checks on the executive and judiciary, executive checks on the legislature and judiciary, and judicial checks on the legislature and executive.
  • Understand the scope and limits of Congressional power, particularly regarding its influence over the executive branch (e.g., impeachment, appropriations, legislative veto invalidity).
  • Comprehend the extent of Presidential power (e.g., appointment, removal, veto, pardon) and its limitations.
  • Recognize the role of Judicial Review in maintaining the separation of powers.
  • Analyze issues related to delegation of powers and immunities of government officials.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following actions by Congress would most likely violate the principle of separation of powers?
    1. Refusing to confirm a Presidential appointment to the Supreme Court.
    2. Passing a law that overrides a Supreme Court decision interpreting a federal statute.
    3. Enacting a statute that allows a congressional committee to veto an executive agency's regulation before it takes effect.
    4. Conducting impeachment proceedings against a federal judge.
  2. The President's power to veto legislation passed by Congress is an example of:
    1. A check by the executive branch on the legislative branch.
    2. A power delegated to the President by Congress.
    3. A fundamental power derived from the Take Care Clause.
    4. A power subject to judicial review for constitutionality before the veto is exercised.
  3. Executive privilege allows the President to withhold certain information from other branches. This privilege is:
    1. Absolute and cannot be overridden by any other branch.
    2. Explicitly granted in Article II of the Constitution.
    3. Qualified and may yield when there is a demonstrated, specific need for evidence in a criminal trial.
    4. Applicable only to matters involving foreign affairs or national security secrets.

Introduction

The U.S. Constitution establishes three distinct branches of federal government—Legislative (Congress), Executive (President), and Judicial (Supreme Court and lower federal courts)—and allocates specific powers to each. This separation of powers is fundamental to the structure of American government, designed to prevent the concentration of power in any single branch. Equally important is the system of checks and balances, which allows each branch to limit the powers of the others, ensuring no branch becomes dominant. Understanding the interplay between these branches, their respective powers, and the constitutional limits imposed upon them is critical for the MBE.

Key Term: Separation of Powers The constitutional doctrine dividing governmental power among the legislative, executive, and judicial branches, each with distinct roles and responsibilities.

Key Term: Checks and Balances The system embedded in the Constitution whereby each branch of government has the authority to limit the power of the other branches, preventing any one branch from becoming too powerful.

CONGRESSIONAL POWERS AND LIMITS ON OTHER BRANCHES

Article I vests all legislative powers in Congress. Beyond lawmaking, Congress possesses significant checks on the other two branches.

Legislative Checks on the Executive Branch

  1. Impeachment Power: The House of Representatives has the sole power of impeachment (bringing charges), and the Senate has the sole power to try impeachments. Conviction requires a two-thirds vote of the Senate and results in removal from office. [U.S. Const. Art. I, §2, cl. 5; Art. I, §3, cl. 6] This applies to the President, Vice President, and all civil officers.
  2. Power of the Purse: Congress controls funding for executive branch activities through appropriations. It can limit or deny funding for specific executive actions or agencies. [U.S. Const. Art. I, §9, cl. 7]
  3. Veto Override: Congress can override a Presidential veto with a two-thirds vote in both the House and the Senate. [U.S. Const. Art. I, §7, cl. 2]
  4. Senate Confirmation: The Senate must confirm major Presidential appointments (e.g., cabinet officers, ambassadors, federal judges) and must ratify treaties negotiated by the President (by a two-thirds vote). [U.S. Const. Art. II, §2, cl. 2]
  5. Investigations: Congress has broad power to investigate matters related to its legislative function, including executive branch activities.
  6. Declaring War: Although the President is Commander in Chief, only Congress has the power to declare war. [U.S. Const. Art. I, §8, cl. 11]

Key Term: Impeachment A formal process initiated by the House of Representatives bringing charges against a federal official (President, VP, judge, etc.), potentially leading to trial in the Senate and removal from office upon conviction.

Legislative Checks on the Judicial Branch

  1. Confirmation of Judges: The Senate confirms federal judicial appointments made by the President.
  2. Creating Lower Courts: Congress has the power to establish lower federal courts and determine their jurisdiction. [U.S. Const. Art. III, §1]
  3. Defining Appellate Jurisdiction: Congress can make exceptions to the Supreme Court's appellate jurisdiction. [U.S. Const. Art. III, §2, cl. 2]
  4. Impeachment: Federal judges can be impeached by the House and removed by the Senate.

Limitations on Congressional Power over Other Branches

  1. Legislative Veto: Congress cannot reserve for itself the power to veto executive actions or regulations without following the constitutional process of bicameralism (passage by both houses) and presentment (presenting the bill to the President for signature or veto). Attempts to exercise a legislative veto by one house or a committee are unconstitutional. [INS v. Chadha (1983)]
  2. Appointment/Removal Power Limits: Congress cannot appoint executive officers; this power belongs to the President (with Senate confirmation for principal officers). [U.S. Const. Art. II, §2, cl. 2; Buckley v. Valeo (1976)] Congress also cannot reserve for itself the power to remove an executive officer except through impeachment. [Bowsher v. Synar (1986)]
  3. Delegation Limits (Non-Delegation Doctrine): While Congress can delegate rulemaking authority to executive agencies, it must provide an "intelligible principle" to guide the agency. Broad delegations are generally upheld, but purely legislative power cannot be delegated. [Mistretta v. United States (1989)]

Key Term: Legislative Veto An unconstitutional mechanism by which Congress, one of its houses, or a committee attempts to reserve the power to overturn an executive action without following the required legislative process (bicameralism and presentment).

Worked Example 1.1

Congress passes a law creating a new executive agency to regulate air quality. The law includes a provision stating that any major regulation issued by this agency must be submitted to the Senate Environment Committee, which can disapprove the regulation by majority vote within 60 days, thereby preventing it from taking effect. Is this provision constitutional?

Answer: No. This provision creates a legislative veto, which violates the principles of bicameralism and presentment required by Article I, Section 7. For Congress to overturn an executive action that has the force of law, it must pass legislation through both houses and present it to the President for signature or veto. A one-committee veto bypasses this constitutionally mandated process. [INS v. Chadha]

EXECUTIVE POWERS AND LIMITS ON OTHER BRANCHES

Article II vests the executive power in the President. Key powers and checks include:

Executive Powers and Checks

  1. Veto Power: The President can veto legislation passed by Congress, subject to a potential override. [U.S. Const. Art. I, §7, cl. 2] There is no line-item veto power for the President regarding appropriations bills; the President must sign or veto the bill in its entirety. [Clinton v. City of New York (1998)]
  2. Appointment Power: The President appoints ambassadors, federal judges, and other officers of the United States, with the advice and consent of the Senate for principal officers. [U.S. Const. Art. II, §2, cl. 2]
  3. Removal Power: The President generally has the power to remove executive officials, although Congress may impose statutory limitations (e.g., removal only "for cause") for some inferior officers, particularly those in independent agencies. [Morrison v. Olson (1988)] However, Congress cannot completely prohibit removal or reserve removal power to itself (except by impeachment).
  4. Pardon Power: The President can grant reprieves and pardons for offenses against the United States, except in cases of impeachment. [U.S. Const. Art. II, §2, cl. 1] This power is broad and cannot be limited by Congress.
  5. Commander in Chief: The President is Commander in Chief of the armed forces. [U.S. Const. Art. II, §2, cl. 1] While the President can deploy troops, the power to declare war resides with Congress.
  6. Executive Orders/Agreements: The President can issue executive orders to direct the executive branch and enter into executive agreements with foreign nations (which do not require Senate ratification like treaties but are subordinate to federal statutes and treaties).

Key Term: Veto Power The President's constitutional authority (Article I, §7) to refuse to sign a bill passed by Congress, preventing it from becoming law unless Congress overrides the veto with a two-thirds vote in both houses.

Key Term: Executive Privilege An implied power claimed by the President to withhold certain confidential communications with advisors from disclosure to Congress or the judiciary, qualified by the need for evidence in criminal proceedings. [United States v. Nixon (1974)]

Limitations on Executive Power

  1. Congressional Oversight: Subject to investigation, impeachment, and funding controls by Congress.
  2. Judicial Review: Presidential actions are subject to judicial review for constitutionality.
  3. Take Care Clause: The President must "take Care that the Laws be faithfully executed." [U.S. Const. Art. II, §3] This implies the President cannot refuse to enforce laws with which he disagrees (impoundment of funds is generally impermissible if Congress has mandated spending).

JUDICIAL POWERS AND LIMITS ON OTHER BRANCHES

Article III vests the judicial power in the Supreme Court and such inferior courts as Congress may establish.

Judicial Powers and Checks

  1. Judicial Review: The power of the courts to review the constitutionality of acts by the legislative and executive branches (federal and state). This is the primary judicial check. [Marbury v. Madison (1803)]
  2. Interpretation of Laws: Courts interpret federal statutes and the Constitution, binding the other branches through their rulings in specific cases.

Key Term: Judicial Review The power of the judiciary, established in Marbury v. Madison, to review laws and governmental actions to determine their constitutionality and invalidate those that conflict with the Constitution.

Limitations on Judicial Power

  1. Case or Controversy Requirement: Federal courts can only decide actual cases or controversies; they cannot issue advisory opinions. [U.S. Const. Art. III, §2] Issues must be ripe (not premature) and not moot (a live controversy must exist).
  2. Standing: Plaintiffs must have standing (injury, causation, redressability) to bring suit.
  3. Political Question Doctrine: Courts will not decide issues constitutionally committed to another branch or fundamentally incapable of judicial resolution (e.g., challenges to the republican form of government guarantee, partisan gerrymandering). [Baker v. Carr (1962)]
  4. Congressional Limits: Congress can regulate the appellate jurisdiction of the Supreme Court and the jurisdiction of lower federal courts.
  5. Appointment/Impeachment: Subject to Presidential appointment (with Senate confirmation) and Congressional impeachment power.

INTERBRANCH IMMUNITIES

Each branch enjoys certain immunities related to its functions:

  1. Executive Immunity: The President has absolute immunity from civil damages for official acts taken while in office [Nixon v. Fitzgerald (1982)], but no immunity for acts prior to taking office [Clinton v. Jones (1997)]. Executive privilege (see Key Term above) provides qualified immunity for confidential communications.
  2. Legislative Immunity (Speech or Debate Clause): Members of Congress are immune from civil or criminal liability for statements made and conduct performed during the legislative process (e.g., speeches on the floor, committee work). [U.S. Const. Art. I, §6, cl. 1] This immunity does not cover communications outside the legislative process (e.g., press releases, constituent newsletters). [Gravel v. United States (1972)]
  3. Judicial Immunity: Judges have absolute immunity from civil liability for damages resulting from their judicial acts, even if performed maliciously or in bad faith. Immunity does not extend to non-judicial acts (e.g., administrative tasks).

Exam Warning

Do not confuse the President's absolute immunity from civil damages for official acts with the lack of immunity for prior conduct or potential criminal liability. Also, note that the legislative Speech or Debate Clause immunity is broad for legislative acts but does not cover activities like taking bribes or communicating outside of Congress.

Revision Tip

Focus on the specific mechanisms of checks and balances. For the MBE, be able to identify which branch is checking which, and whether the method used (e.g., veto, confirmation, impeachment, judicial review) is constitutionally valid in the given context. Understand the limits on these checks (e.g., legislative veto invalidity, limits on executive privilege).

Key Point Checklist

This article has covered the following key knowledge points:

  • The Constitution divides federal power among three branches: Legislative (Art. I), Executive (Art. II), and Judicial (Art. III).
  • Separation of powers prevents power concentration; checks and balances allow each branch to limit the others.
  • Key Congressional checks include impeachment, appropriations, veto override, and Senate confirmation.
  • Key Executive checks include veto power, appointment/removal (with limits), and pardon power.
  • Key Judicial checks include judicial review of legislative and executive actions.
  • The legislative veto is unconstitutional (INS v. Chadha).
  • Executive privilege is qualified, not absolute (United States v. Nixon).
  • Congress cannot reserve the power to remove executive officers except by impeachment.
  • Federal courts are limited by case/controversy, standing, ripeness, mootness, and political question doctrines.
  • Each branch possesses certain immunities relating to its official functions (executive, legislative, judicial).

Key Terms and Concepts

  • Separation of Powers
  • Checks and Balances
  • Impeachment
  • Legislative Veto
  • Veto Power
  • Executive Privilege
  • Judicial Review
The answers, solutions, explanations, and written content provided on this page represent PastPaperHero's interpretation of academic material and potential responses to given questions. These are not guaranteed to be the only correct or definitive answers or explanations. Alternative valid responses, interpretations, or approaches may exist. If you believe any content is incorrect, outdated, or could be improved, please get in touch with us and we will review and make necessary amendments if we deem it appropriate. As per our terms and conditions, PastPaperHero shall not be held liable or responsible for any consequences arising. This includes, but is not limited to, incorrect answers in assignments, exams, or any form of testing administered by educational institutions or examination boards, as well as any misunderstandings or misapplications of concepts explained in our written content. Users are responsible for verifying that the methods, procedures, and explanations presented align with those taught in their respective educational settings and with current academic standards. While we strive to provide high-quality, accurate, and up-to-date content, PastPaperHero does not guarantee the completeness or accuracy of our written explanations, nor any specific outcomes in academic understanding or testing, whether formal or informal.
No resources available.

Job & Test Prep on a Budget

Compare PastPaperHero's subscription offering to the wider market

PastPaperHero
Monthly Plan
$10
AdaptiBar
One-time Fee
$395
Assessment Day
One-time Fee
$20-39
BarPrepHero
One-time Fee
$299
Job Test Prep
One-time Fee
$90-350
Quimbee
One-time Fee
$1,199

Note the above prices are approximate and based on prices listed on the respective websites as of May 2025. Prices may vary based on location, currency exchange rates, and other factors.

Get unlimited access to thousands of practice questions, flashcards, and detailed explanations. Save over 90% compared to one-time courses while maintaining the flexibility to learn at your own pace.

All-in-one Learning Platform

Everything you need to master your assessments and job tests in one place

  • Comprehensive Content

    Access thousands of fully explained questions and cases across multiple subjects

  • Visual Learning

    Understand complex concepts with intuitive diagrams and flowcharts

  • Focused Practice

    Prepare for assessments with targeted practice materials and expert guidance

  • Personalized Learning

    Track your progress and focus on areas where you need improvement

  • Affordable Access

    Get quality educational resources at a fraction of traditional costs

Tell Us What You Think

Help us improve our resources by sharing your experience

Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

Saptarshi Chatterjee

Saptarshi Chatterjee

Senior Associate at Trilegal