Please bear with me, I’m a novice in the workings of the US Constitution, but this one puzzles me.
I thought that one of the foundation stones of American polity was the rigid separation of powers between the executive, legislative and judiciary.
In the UK there is no such separation and in fact the executive branch of government, including the Prime Minister and all his cabinet, are Members of Parliament, which is the legislative chamber.
BTW is it unconstitutional for a Senator to be a part of the President’s cabinet, eg Secretary of State for Defense?
My main question though concerns the Vice-President’s role as leader of the Senate, with the casting vote when the Senate is tied. Isn’t this a gross violation of the concept of separation of powers?
Edward S. Corwin mentions that the Cabinet is completely extraconstitutional, so there is no requirement that the President compose his cabinet of the heads of the Executive Departments (and from time to time others have been included, such as the Ambassador to the U.N.). He specifically states that the President could make up his Cabinet of the chairmen of the House and Senate standing committees if he so chose.
What would be unconstitutional is for a Senator or Representative to serve as the head of a department in the Executive Branch, there being a provision that they are not permitted to accept another position of authority under the U.S. or any other government (somebody will be by shortly with the apposite clause from the Constitution).
But the provision for the V.P. to be President of the Senate is a part of the Constitution, which does not specifically mandate separation of powers – it’s merely a useful catch phrase for the attempt to avoid concentration of power in one or a few men structured into the Constitution by the wisdom of the F.F.
Just as several SCOTUS decisions have indicated that no legislature can be districted by any other means than as-even-as-possible one-man-one-vote representation does not apply to the U.S. Senate, which is specifically designed to give equality to the States, the V.P.'s role vis-à-vis the Senate is an exception to the general principle of separation of powers. (As is, of course, the Chief Justice’s job to preside over the Senate when it sits as the Court for the Trial of Impeachments over the President.)
As Poly says (and I’m ever so glad he’s able to say it 
), there is no specific constitutional provision for separation of powers. Rather, the Constitution simply defines how is branch is constituted and what it is that each is empowered to do. In reality, the powers of each branch overlap to a certain extent. For instance, Congress frequently delegates quasi-legislative duties to the executive branch by giving it the authority (within the bounds decribed by the legislature) to issue regulations on any number of subjects. Those regulations take on the force of federal law, even though never specifically approved by Congress.
The Separation of Powers devised by the framers of the Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers is also known as “Checks and Balances.”
The British Parliamentary system works like this: There are two houses of the legislature. The upper house, the House of Lords, consists of the nobility of Britain, dukes, earls, viscounts - there are about 900 members. The House of Lords serves a judicial function, but is widely regarded as ineffectual. It can also delay passage of bills issued by the lower house, though it cannot veto them. The lower house, the House of Commons, consists of MPs (Members of Parliament) elected from small divisions of the country, akin to American counties. In the Commons, majority rules. The majority party makes all the laws. The minority has little voice. The Prime Minister, Britain’s closest approximation of the American President, is an MP chosen by the majority. The judiciary has no power of review as in the US. Since Britain has no formal, written constitution, no law can be unconstitutional. The head of state, analogous still with the President, is the monarch (King or Queen). The monarch must approve of all bills, though the process today is little more than a rubber stamp. The Speaker of the House of Commons, appointed by the monarch, acts as the referee in debate between the majority and the minority. The MPs in the House of Commons sit for five years, or until the Prime Minister dissolves Parliament and calls for new elections. The Prime Minister also heads the Cabinet.
In Britain, the majority party in the House of Commons holds all of the power. The judiciary has no power of review. The House of Lords holds little more than delaying powers. By tradition, the monarch does not veto bills passed by the Parliament. And the de facto head of state, the Prime Minister, is a member of the Commons.
The system is different in the USA.
Three branches are created in the Constitution. The Legislative, composed of the House and Senate, is set up in Article 1. The Executive, composed of the President, Vice-President, and the Departments, is set up in Article 2. The Judicial, composed of the federal courts and the Supreme Court, is set up in Article 3.
Each of these branches has certain powers, and each of these powers is limited by another branch.
For example, the President appoints judges and departmental secretaries. But these appointments must be approved by the Senate. The Congress can pass a law, but the President can veto it. The Supreme Court can rule a law to be unconstitutional, but the Congress, with the States, can amend the Constitution.
All of these checks and balances, however, are inefficient. But that’s by design rather than by accident. By forcing the various branches to be accountable to the others, no one branch can usurp enough power to become dominant.
The following are the powers of the Executive: veto power over all bills; appointment of judges and other officials; makes treaties; ensures all laws are carried out; commander in chief of the military; pardon power. The checks: The Legislative branch can override vetoes; can refuse to confirm appointments and reject treaties; can declare war; can impeach the President. The Judicial branch can declare Executive acts as unconstitutional.
The following are the powers of the Legislature: Passes all federal laws; establishes all lower federal courts; can override a Presidential veto; can impeach the President. The checks: The Executive can veto any bill and can call the Congress into session. The Judicial branch can declare laws unconstitutional. In addition, the two houses of Congress must agree on legislation, providing an internal check.
The following are the powers of the Judiciary: the power to try federal cases and interpret the laws of the nation in those cases; the power to declare any law or executive act unconstitutional. The checks: The Executive appoints members. The Legislative can impeach judges and has approval power over Presidential appointments; it can also propose amendments to overturn judicial decisions.
Historically, the concept of Separation of Powers dates back as far as ancient Greece. The concepts were refined by contemporaries of the Framers, and those refinements influenced the establishment of the three branches in the Constitution.
Aristotle favored a mixed government composed of monarchy, aristocracy, and democracy, seeing none as ideal, but a mix of the three useful by combining the best aspects of each. In his 1656 Oceana, James Harrington brought these ideas up-to-date and proposed systems based on the separation of power. John Locke, in his 1690 Civil Government, second treatise, separated the powers into an executive and a legislature. Montesquieu’s 1748 Spirit of the Laws expanded on Locke, adding a judiciary. The framers of the Constitution took all of these ideas and converted the theories into practical applications.
Having the VP as President of the Senate is a deliberate anomally in the Constitution. But also remember, as President of the Senate, the VP has no stated power and influence whatsoever except in two instances, to make or break a tie vote.
I think you mean one instance for the VP in the Senate. S/he can only vote if the Senate is equally divided. Just tiebreaking.
The VP rarely sits as President of the Senate anymore. Just for ceremonial events (State of the Union address, first day of the new Congress), or if a tie vote is likely. Then, the VP stands by to go take over the President’s chair at the apporpriate time.
The first VP, John Adams, sat as President of the Senate frequently, but even he realized that it was a dead end job.
Similarly, when the executive branch creates those regulations, it often provides for administrative remedies which are similar to trials, but held under the authority of the administrative agencies, as quasi-judicial proceedings. Legislative provisions often require administrative remedies to be exhausted before judicial remedies are available. The overlap can certainly make your head spin!
Amazingly thorough job, Duckster!
That “disability to hold other offices” clause is in Article I, Section 6.
One interesting question–to me, that is–is whether the Veep could also hold a cabinet position, like Sec of State. It’s not absolutely clear that his Constitutional role as President of the Senate makes him a “member” of the Senate in the sense used in the relevant clause.
When LBJ, formerly a powerful Senator, was President of the Senate during his veeptime with JFK, he made some efforts to function as a “real” presiding officer, but was swiftly rebuffed. Still, nothing in the Constitution would prevent the veep from having some actual authority, if the Senators were willing.
Several sitting Veeps have functioned as, in effect, top advisors or chiefs of staff for their Presidents–with mixed results.
In closing, Aldiboronti–the “separation of powers” view is prevalent in the USA, but not totally settled. There are those (not me) who argue for the primacy of the legislative branch. And if you really REALLY wanna push things far enough (just short of a military coup), I suppose the power of impeachment/removal does give them the final card to play.
Although he is technically in the Executive Branch, he doesn’t really have any Executive Powers other than wait around and periodically check whether the President is still alive. His ONLY power (tie-breaking) is legislative. So it’s not really a separation of powers issue.
Thorough, but not entirely correct, Duckster. Constitution - Fourth Report [From the United Kingdom Parliament] discusses constitutional change in the government of the UK.
Nice job, gang. One small quibble with the British part of Duckster’s post – the Queen’s 50 years of experience in reading the important papers of government are not lightly ignored – any P.M. (or other minister when invited) worth his salt will look for her private advice before pursuing a controversial or fundamental-change issue, and be swayed to a certain extent by it.
And it is the Queen, not the P.M., who dissolves Parliament. To be sure, she will only do it at his request – but she is not obliged to do so just because he wants it. For example, in a Commons of 630 people, it requires a 316-man majority to form a government. Suppose a general election returning 313 Tories, 295 Labour, and 19 Liberal Democrats and 3 miscellaneous (Scots National, Plaid Cymru, Amalgamated Bringbacktheempire Party ;), and such. The Tories have the right to form a government in coalition with the LibDems. But if the latter split and the government is defeated on a vote of confidence, the P.M. may wish to take it to the country and get a Commons where he has a real majority. It’s up to the Queen to decide if the situation warrants calling another election or if the Labour leader can put together a coalition with a majority and take over – and if it’s been only three months since the last election and the Tory P.M. is an arrogant jerk who alienated the LibDems, she may just decide that letting Labour have its chance is the way to go. It’s one of the few surviving powers which she has in her own right rather than as a figurehead.
With regard to the U.S. V.P., I believe there was a court case some years ago when the incumbent V.P. was named to some commission that established that Art I Sec 6 did not apply to him. I could be mistaken in this, however.
With regard to his powers and influence (the present incumbent to one side), the classic quote is from John Nance (Cactus Jack) Garner, V.P. from 1933-41, who told of the man who had two sons: “One went away to sea, and the other was elected Vice President. Neither were ever heard from again.”