The separation of governmental powers is one of the hallmarks of the American Constitutional system. In Britain and in the many other countries that follow the Westminster model, the executive, legislative and judicial functions are all handled, wholly or in important measure, by the single entity known as parliament. In the United States, however, a separate branch of government, namely the Presidency, the Congress and the Judiciary, carries out each of these functions.
The three are interrelated; not only in the way they derive their power, but also in the way they exercise it. The President, senators and representatives are directly elected; judges and justices are appointed by the President with the consent of the Senate. Congress can remove a President from office by impeachment for “high crimes and misdemeanors. All three branches can be involved in the formulation of laws; Congress must pass them, the President must sign or veto them and the courts are frequently called upon to adjudge their constitutionality and meaning.
This arrangement of separated and overlapping functions creates a system of checks and balances that is another hallmark of the American system. Some of this is set out in the Constitution. Some is codified in the decisions of the Supreme Court, such as Marbury v. Madison, which established the right of the Court to rule on the constitutionality of acts of Congress. Many gray areas remain, however, where the delineation of powers is not so clear and where, in fact, the branches of government, usually the legislative and executive, grapple from time to time for dominance.
Often these struggles take place deep within the bureaucracy, but sometimes, as in the extensive investigation of a sitting President by an independent counsel and the resulting consideration by Congress of his report, they become the stuff of national preoccupation. One important struggle was recently decided by the Supreme Court when it declared unconstitutional the line-item veto statute passed by Congress after years of agitation for a Federal law giving Presidents the right, already enjoyed by many governors, to approve some parts and disapprove other parts of legislation.
President Clinton signed the bill and used its powers on several occasions, but the Court subsequently found that it ceded to the President Congressional powers that Congress was not empowered to cede in the absence of a Constitutional amendment. The Miller Center Commission on the Separation of Powers is the eighth such commission established by the Center to study aspects of the Federal government, in a series dating back to 1980. Like the others, it is independent of party and faction.
Over the last two and one-half years, it has conducted a methodical and scholarly survey, examining a number of areas where the separation of powers is unclear and selecting five of them for detailed consideration. These are: The office of independent counsel, the uses of inspectors general throughout the government, the doctrine of executive privilege, the issuance of executive orders and the War Powers Resolution passed in 1973. All are related in some way to the contentious debates that arose out of the Vietnam War and the Watergate scandal.