ASSIGNMENT

FROM: ABDUR REHMAN 151

RAHEEL AHMED 152

FAWAD ZAFAR 154

TO:

GROUP:

SUBJECT:

TOPIC:

HAMZA IQBAL 155

MAM FOZIA SHAHEEN

01

US CONSTITUTION

SEPARATION OF POWERS

UNIVERSITY OF SARGODHA

INTRODUCTION AND CONSTITUIONAL BASES OF SEPARATION OF POWERS IN

US ( BY HAMZA IQBAL) INTRODUCTION:
Power is the most cruel, when it is most concentrated and least when diversified.The way to avoid the
abuse of power by goverment agencies is divide the political power and vest it in to the hand of diverse
persons so that there is effective check on power by power. The frame of US constitution were influenced
by Montesquieu, so they brought about wise distribute of power. The kept of executive, legislative and
judicial powers as seprate from and independent of each other.

ORIGIN AND NEED FOR THE THEORY OF SEPARATION OF POWER:

In Montesquieu tume france was ruled by absolutists and tyrannical king. He hated tyranny and was an
ardent champion of liberty. In England, which he visited, he saw people who enjoy liberty of individual
with out any tyrannical goverment. He thought that the English libert was due to separations of powers in
English goverment. He formulated his thought in the form of dectorine of powers, expounded in his
famous book "The spirit of Labus written in 1748".
BASIS OF CONCEPT OF SEPRATION OF POWER:
The theory of sepration of power is based on the concept "Where might is right, there is no right". It
means where all powers of the government are in the hands of one person there can be no liberty.
MEANING OF SEPRATION OF POWER:
It is the division of government authority in to three branches of government i.e. legislative, executive
and judicial each with specified duties on which neither of the other branches can encroach.

MONTESQUIEU THEORY OF SEPRATION OF POWER:

This doctrine is based on the proposition that a concentration of functions is a temptation of tyranny. He
did advocate separation of powers; although this is a construction that is often placed upon his work of
course the best method is where the difference organs of goverment act as restrains upon each other i.e.
the system of checks and balances.

SEPRATION OF POWER IN AMERICAN CONSTITUTION:

The American constitution is based on the theory of Separation of power. Although the constitution does
not explicitly proclaim this principle in any of its clause, yet can be easily and clearly inferred from the
way it is drafted. The US constitution assigns different powers to different organs of the state.
Article 1, provides that all legislative power are vested in Congress.
Article 2, provides that the executive powers are vested in the president.
Article 3, states that judicial powers are vested in supreme court and such inferior courts as the congress
may from time to time ordain and establish.

ACCORDING TO THOMAS JEFFERSON:

"The leading principle of our constitution is the independence of the legislature, executive and judiciary
from each other".

Role and Power of Each Branch

(By M.Ayan Sikander Bhatti)

Legislative Branch (Congress)

- Role:Makes laws.
- Powers:
- Enacting legislation.
 - Controlling federal finances (taxes and expenditures).
- Declaring war.
- Ratifying treaties and appointments (Senate).

- Oversight of the Executive through hearings and investigations.

Executive Branch (President)**

- Role: Enforces laws
- Powers:
- Veto legislation.
- Command armed forces as Commander-in-Chief.
- Negotiate and sign treaties (with Senate ratification).
- Appoint federal officials, including judges (with Senate approval).
- Issue executive orders and grant pardons.

Judicial Branch (Supreme Court and Lower Courts)

Role: Interprets laws.
Powers:
Judicial review (established in *Marbury v. Madison*, 1803).
Resolve disputes under federal law and the Constitution.
Declare acts of Congress or Executive actions unconstitutional.

CHECK AND BALANCE IN PRACTICE ( BY FAWAD ZAFAR )

Preface Fact
The Constitution divided the Government into three branches: legislative, executive, and judicial. That
was an important decision because it gave specific powers to each branch and set up something called
checks and balances. The framers of the U.S constitution were trying to establish limited government and
strongly struggling to prevent America from dictatorship. The system of checks and balances is used to
keep the government from getting too powerful in one branch. So they have provided a system based on
theory of separation of power along with internal check and balances

Influence of check and balances on U.S constitution

The system of check and balances influences on the U.S constitution greatly. But now the American
adopted this theory in practice while they did not drafted it in the constitution. The system of Check and
balances forbids the constitution to share the powers with one department that’s why constitution gave
small powers to each of the department

Origin of Check and balances

A French writer, along with the theory of separation of power, he has explained the separation of power as
a tool for check and balances on other departments. US Governments Separation of powers and the
system of checks and balances. In theory, the Legislative Branch, the Executive Branch, and the Judicial
Brach are designed to keep each other in check, and to keep any branch from becoming too powerful. In
reality, the system was designed to keep the president from becoming some kind of dictator

Importance of system
After the formation of U.S government, the framers of the Constitution thought it was best if the
government was divided into three branches, the legislative, executive, and judicial branches. Each of the
sections would also have its own separate powers: the legislative branch creates laws, the executive
branch enforces laws, and the judicial branch interprets laws. This was done so that no one branch would
become too dominant. The concept of separation of powers is directly related to the system of checks and
balances because each branch has its own set of powersalances), and some of the capabilities that each
branch has makes sure that another branch doesn't abuse its power (checks)

Purpose of check and balances

The purpose of system of checks and balances is based on the law following are the purposes of this
system

Declaration of liberty
All people have right to enjoys the free exercise of religion, freedom of speech, the system of check and
balance prevents the departments to overrule on the rights of people

Fatal omission
The purpose of this system of check and balance is to control the departments from using of their powers
illegally and stops the departments from fatal omission by which the right of the people may can be
affected

Checks and balances

The Constitution attempted to limit the power of central government through checks and balances. A key
principle was separation of powers have been applied on those who make laws, enforce laws, and
interpret laws should be independent and capable of limiting each other’s power.
Provision of rights
The purpose of check and balance is to provide rights to the people And tell them about rights for which
they are entitled likewise any department cannot suppress their rights

Working check and balances

1. Check on congress
The American congress is empowered to make law for the country but any bill passed by the congress
cannot become a law until it has received the assent of the president. American president has power to
refuse to give his assent and send the bill back to congress. President controls the congress by his veto
power

2. Check on president
It is said that American president is the most powerful person in the world. The president is the chief
executive of the country and is given vast powers. However he cannot exercise his powers unlawfully.
The senate and Supreme Court can check him.supreme can declare his act unconstitional through his
power of judicial review. President makes high ranked appointment but all are subject to the approval of
the senate. The American congress is empowered to impeach the president. The senate control internal
policy and administration of president

3. Check on judiciary
The president and the congress have certain checks on judiciary. The U.S president appoints the judges of
Supreme Court and congress gives his approval for their appointment. Congress fixes the salaries of the
judges. Judiciary is powerful but not free from checks. The congress can impeach the judges and judges
can declare unconstitutional, laws passed by the congress. As well as president has power to pardon to
criminals

7) Principal of separation of power and check and balance

Due to a system of checks and balances, the legislative, executive, and judicial branches' powers overlap,
and each branch uses some power over the others. ... The Judicial Branch checks on the presidential acts
reviews executive acts and checks on Congress and reviews law, Executive branch checks on judicial
branch and courts actions and checks congress and their acts as legislation, congress checks on the
judicial acts and presidential acts and can impeach the president and vice president

8) How checks and balance works

Not only does each branch of the government have particular powers each branch has certain powers over
the other branches. This is done to keep them balanced and to prevent one branch form ever gaining too
much power.
For example:
• Congress may pass laws........but the President can veto them.
• The President can veto laws.......but Congress can override the veto with a 2/3 vote.
• The President and Congress may agree on a law..........but the Supreme Court can declare a law
unconstitutional.
• The President can appoint Judges and other government officials.......but Senate must approve
them.
• Supreme Court judges have life terms.......but they can be impeached.

9) Preclude Remarks
The framer of the U.S constitution has provided the system of check and balances. All the department of
the government have vested in vast powers but none of them can exercise their power unlawfully. Due to
check of other two departments upon one department ,this system keep the department not to use his
powers unlawfully and stop to becoming more powerful than other

CRITICAL ANALYSIS OF US CONSTITUTION ( BY

ABDUR REHMAN )

The doctrine of separation of powers, as enshrined in the U.S. Constitution, has played a pivotal role in
shaping the nation's governance system. While it has provided a robust framework to prevent tyranny and
ensure accountability, it is not without its challenges and criticisms. Below is a detailed critical analysis of
its strengths, weaknesses, and evolving relevance.

Strengths of the U.S. Separation of Powers System Prevention of

Tyranny:

• By distributing governmental powers across three distinct branches, the U.S. Constitution
prevents any single entity from amassing excessive power. This framework aligns with
 Montesquieu’s principle that "power should be a check to power," ensuring a balanced
governance system.

Checks and Balances:

• The system introduces effective checks and balances to monitor and counterbalance the authority
of each branch. For example:
• The President can veto legislation passed by Congress, ensuring executive oversight of legislative
actions.
• Congress can override a veto with a two-thirds majority, keeping executive power in check.
• The judiciary has the authority of judicial review, as established in Marbury v. Madison (1803),
allowing courts to strike down unconstitutional laws or executive actions.

Flexibility and Adaptability:

• The separation of powers enables the government to adapt to changing circumstances while
maintaining the integrity of the Constitution. For instance, during crises like the Great Depression
and the COVID-19 pandemic, the branches adjusted their roles to address national challenges
effectively.

Accountability and Transparency:

• By diffusing authority, the system fosters accountability as each branch is subject to scrutiny by
the others. This transparency is critical in a democratic society, as it ensures that power is
exercised in the public's interest.

Weaknesses and Challenges

Gridlock and Inefficiency:
• The separation of powers often leads to legislative gridlock, particularly during periods of divided
government when the President belongs to a different political party than the majority in
Congress. For example:
• Budget standoffs and government shutdowns are recurring issues, stemming from the inability of
branches to agree on fiscal policies.
• The confirmation process for judges and key executive appointments can be delayed, hindering
the functioning of government agencies.

Partisanship and Polarization:

 • Over the years, increasing political polarization has eroded the cooperative spirit envisioned by
the Founding Fathers. The separation of powers, in some instances, amplifies partisan conflicts
rather than fostering compromise.

Judicial Overreach:
• Critics argue that the judiciary sometimes oversteps its boundaries, effectively "legislating from
the bench." Decisions such as Roe v. Wade (1973) and Citizens United v. FEC (2010) have
sparked debates about whether courts are exercising undue influence over policy matters better
left to elected representatives.

Executive Overreach:
• The expansion of executive powers, particularly through executive orders and emergency
declarations, raises concerns about the balance of power. For instance:
• Post-9/11 policies, including the use of executive authority to justify military actions and
surveillance, have drawn criticism for bypassing Congressional oversight.
• Recent administrations have faced legal challenges over immigration policies enacted through
executive orders.

Influence of External Forces:

• The system does not adequately address the growing influence of lobbyists, corporate interests,
and media on legislative and executive decision-making. These factors can undermine the
separation of powers by creating unequal access to policymakers.

Modern Critiques and Evolving Challenges

Technological and Global Challenges:
• Modern issues such as cybersecurity, climate change, and global pandemics require swift and
coordinated action. The separation of powers can slow down decision-making, rendering the
system less effective in addressing these complex, transnational problems.

Erosion of Congressional Authority:

• Over time, Congress has ceded significant power to the Executive Branch, particularly in areas
such as military action and regulatory rule-making. This shift challenges the balance of power
envisioned by the framers of the Constitution.
Comparison with Other Democracies:
• Parliamentary systems in countries like the United Kingdom often provide more streamlined
governance due to the fusion of legislative and executive powers. Critics argue that the U.S.
system’s rigid separation can make it less responsive and adaptable in comparison.

CASE STUDIES WHERE SEPARATION OF POWERS WAS TESTED ( BY

RAHEEL AHMED )

1. Watergate Scandal and the Resignation of President Nixon (1972-1974)

Facts of the Case:
• The Watergate scandal originated with a break-in at the Democratic National Committee
headquarters at the Watergate office complex in Washington, D.C., on June 17, 1972.
• Five men were arrested for the burglary, and investigations revealed they were connected to
President Nixon’s re-election campaign and its covert operations.
• Further investigation exposed widespread abuses of power by the Nixon administration, including
political espionage, illegal wiretapping, and obstruction of justice.
• A key element was the discovery of audio recordings from the Oval Office that contained
evidence of Nixon’s involvement in the cover-up.

Role of Separation of Powers:

Legislative Branch:
Congress initiated hearings through the Senate Watergate Committee to investigate the scandal.
The House Judiciary Committee prepared articles of impeachment against Nixon, including obstruction of
justice, abuse of power, and contempt of Congress.

Judicial Branch:
• In United States v. Nixon (1974), the Supreme Court ruled unanimously that the President must
hand over the tapes, rejecting Nixon’s claim of executive privilege as an absolute defense.
• This decision reinforced judicial authority over executive actions when upholding the rule of law.
Executive Branch:
Nixon attempted to use his executive powers to suppress investigations, but his actions were checked by
the other branches.

Final Judgment:
On August 8, 1974, Nixon resigned from office to avoid impeachment and removal. His resignation
marked the first and only time a U.S. President left office voluntarily under threat of impeachment.
Vice President Gerald Ford assumed the presidency and later pardoned Nixon for any crimes he might
have committed.

Impact on Separation of Powers:

The scandal highlighted the effectiveness of checks and balances in holding the President accountable.
It strengthened Congressional oversight and judicial independence in safeguarding the Constitution.

2. Bush v. Gore (2000) Facts

of the Case:

• The 2000 U.S. Presidential Election between George W. Bush and Al Gore hinged on Florida’s 25
electoral votes.
• A controversial recount process began after irregularities in vote counting, particularly with
punch-card ballots ("hanging chads").
• The Florida Supreme Court ordered a statewide manual recount, but Bush appealed to the U.S.
Supreme Court to halt the recount.

Role of Separation of Powers:

Judicial Branch:

• In Bush v. Gore (2000), the U.S. Supreme Court ruled 7-2 that the Florida Supreme Court’s
decision violated the Equal Protection Clause of the Fourteenth Amendment.
• By a 5-4 vote, the Court also decided to stop the recount, effectively awarding Florida’s electoral
votes to Bush.
Executive and Legislative Branches:
The Florida legislature had considered appointing its own slate of electors, but the Court’s decision
rendered this unnecessary.
The executive branch, through state election officials, had managed the initial certification of votes,
which was contested by Gore’s campaign.

Final Judgment:

The Supreme Court’s decision effectively determined the outcome of the election, making George W.
Bush the 43rd President of the United States.

Impact on Separation of Powers:

The case underscored the judiciary’s ability to resolve disputes with significant political implications.
Critics argued the decision blurred the lines between judicial impartiality and political influence.

3. Recent Examples of Executive Orders and Judicial Challenges

Facts of Key Cases:
Trump v. Hawaii (2018):
• In 2017, President Donald Trump issued Executive Orders restricting travel from several
predominantly Muslim countries, citing national security concerns.
• The orders faced immediate legal challenges, with opponents arguing they violated the
Establishment Clause by discriminating based on religion.

California v. Texas (2021):

• Several states challenged President Joe Biden’s executive orders addressing climate change and
healthcare, arguing executive overreach and the violation of state rights.

Role of Separation of Powers:

Judicial Branch:
• Courts reviewed the constitutionality of executive orders, often halting their implementation
through temporary injunctions.
• In Trump v. Hawaii, the Supreme Court upheld the travel ban, asserting the President’s broad
authority over immigration and national security.

Legislative Branch:
 • Congress occasionally intervened to provide legislative clarity or challenge executive authority
through oversight hearings and funding control.

Executive Branch:
• The Executive argued its actions were within the scope of presidential powers, particularly under
statutes granting discretion in areas like immigration and environmental regulation.

Final Judgments:
• Trump v. Hawaii: The Supreme Court upheld the travel ban in a 5-4 decision, emphasizing the
President’s broad powers in matters of national security.
• California v. Texas: The case exemplified the judiciary’s role in scrutinizing executive actions,
often forcing modifications or repeals of contested policies.

Impact on Separation of Powers:

These cases reflect the ongoing tension between executive actions and judicial review.
They highlight the judiciary’s critical role in ensuring executive accountability while balancing national
security and individual rights.