Separation of Powers: Legislative, Executive and Judicial Branches

Why the framers separated powers

This page is for education, information and intellectual discussion. It explains what each authority says and what each court decided. It does not tell anyone to use these arguments, and it is not legal advice.

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

James Madison, The Federalist No. 47 (1788)

Madison drew on Montesquieu, who argued that liberty cannot survive when the same body makes, enforces and judges the law. The Constitution puts each power in its own article: Article I vests legislative power in Congress, Article II vests executive power in the President, and Article III vests judicial power in the Supreme Court and lower federal courts.

Checks and balances

• The President can veto bills, and Congress can override a veto by two-thirds of each house.
• The Senate confirms judges and senior officers and approves treaties.
• Congress controls spending and can impeach and remove officers, including the President and judges.
• Courts decide cases and can hold laws and executive actions unconstitutional (Marbury v. Madison, 1803).

Leading separation of powers cases

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952)

What the case was about: During the Korean War, President Truman ordered federal seizure of the steel mills to avert a strike. The Court held the seizure unconstitutional because no statute authorized it.

How it applies: Justice Jackson’s concurrence set out three categories still used today: presidential power is “at its maximum” with Congress’s authorization, in a “zone of twilight” when Congress is silent, and “at its lowest ebb” when the President acts against Congress’s will.

INS v. Chadha, 462 U.S. 919 (1983)

What the case was about: A law let one house of Congress cancel the Attorney General’s decision to suspend a deportation. The Court held this “legislative veto” unconstitutional because laws must pass both houses and go to the President.

Bowsher v. Synar, 478 U.S. 714 (1986) and Seila Law LLC v. CFPB, 591 U.S. 197 (2020)

What the case was about: Bowsher held that Congress may not give budget-cutting powers to an officer it can remove. Seila Law held that the Consumer Financial Protection Bureau’s single director could not be shielded from removal by the President.

How it applies: Both cases concern the President’s control over officers who carry out the laws.

Morrison v. Olson, 487 U.S. 654 (1988) and Trump v. United States, 603 U.S. 593 (2024)

What the case was about: Morrison upheld the independent-counsel law. Trump v. United States held that a former President has absolute immunity from criminal prosecution for acts within his “conclusive and preclusive constitutional authority,” at least presumptive immunity for all official acts, and “no immunity for unofficial acts.”

Separation of powers and the courts

Courts may exercise only judicial power. In Keller v. Potomac Electric Power Co., 261 U.S. 428 (1923), the Court held that Congress could not make it review utility rate-setting, which is a legislative task. In Federal Radio Commission v. General Electric Co., 281 U.S. 464 (1930), the Court said it “cannot give decisions which are merely advisory; nor can it exercise or participate in the exercise of functions which are essentially legislative or administrative.”

Article III also limits courts to real “cases” and “controversies,” which is why a party needs standing to sue.

How to check the separation of powers claim yourself

The best test of separation of powers is simple: look for a court that accepted it. We have not found one in the reported decisions. Next, read the actual law the claim points to. For example, check the statute, the UCC section or the constitutional text it cites. Then compare that text with what the claim says it means. For a real problem with a debt, a court case or a tax bill, a licensed attorney can explain your actual options. Our directory is a good place to start.

Sources and further reading

Official sources used on this page:

• gutenberg.org
• law.cornell.edu
• law.cornell.edu
• law.cornell.edu
• tarlton.law.utexas.edu

Related reading on Lawtopolis:

• Delegation of Authority: From the People to Government, and the Nondelegation Doctrine
• Sovereignty of the People: Chisholm, Yick Wo, Perry and the Supremacy of the Constitution
• Public Law and Private Law: The Two Branches of the Legal System