Among the fundamental principles of the American state, researchers invariably call the separation of powers. This provision, as well as the principle of checks and balances supplementing it, has been the main concern of internal relations in the American state throughout its history. In this context, one of the core issues of American constitutionalism is the application of the theory of separation of powers in practice.
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The upper and lower houses of Congress are absolutely equal in initiating and discussing bills. The only exception is that all bills related to taxes and the budget (financial bills) should always come from the House of Representatives, where they are initially considered in a more complex procedure and then sent to the Senate for approval. At the same time, the reference to the president’s lack of constitutional law or legislative initiative does not show his functional separation from the legislative process. Article 2 of the Constitution provides for the president’s right to propose to Congress measures that he considers necessary and useful (Thurber, 2013). The US government practice indicates that the administration, from the first years of the republic’s existence to the present day, has been actively using this decree to submit specific bills to Congress.
The “purely American” idea of checks and balances was developed thoroughly and in detail. The main reason for this is the desire to put the construction of separation of powers into practice, because it works namely through checks and balances. Under this system, all branches of government exercise mutual constitutional control in order to avoid abuse of authority, that is, affect the activities of another branch of power by legal means. This interconnection and mutual restriction of divided powers are contained in the Constitution.
The separation of powers and the system of checks and balances in the US, laid down by the founding fathers, suggest that the legislative, executive, and judicial branches of government are separated organizationally, independent of each other, and each of the powers has the authority allowing it to control and restrict others. The system implies that the decision-making process is based on close interaction and compromise between various branches of government, as a result of which the United States can speak in a united voice (Chafetz, 2019). However, such a scheme does not always work in practice in modern times. The level of conflict between the president and Congress quite often remains high. Moreover, competition between the legislative and executive branches can be supplemented by party opposition.
The actual separation of powers has changed historically, although formally constitutional norms have not changed much over time. At the same time, the principle itself acted even in critical periods of American history. Moreover, an appeal to it at the moments such as the years of the economic crisis of the 30s of the last century, testifies to its significance and relevance. Since 1921, the President, instead of Congress, began to prepare the budget and the most important financial bills. At the same time, under the Constitution, Congress has the right to distribute revenues: no cash disbursements from the treasury can be made other than according to the established intentions (Fisher, 2015). For the current system of checks and balances, the decision of the Supreme Court of June in 1983 is crucially important – it recognized the right of Congress to the legislative veto as unconstitutional. As a result of this decision, more than 200 Congressional acts became invalid – it was an unprecedented case in the history of the US Supreme Court (Thurber, 2013). In this decision, the Supreme Court supported the President, whose regulations were vetoed by Congress.
In turn, the veto gives the president the opportunity to prevent the enactment of a bill passed by the Congress. To overcome the veto, each of the chambers, upon reconsideration, must pass the bill by a majority of 2/3 of the vote. However, in the entire history of the American state, congressmen managed to overcome only 2.5% of the presidential veto, which testifies to the great ability of the president to influence the legislative process (Thurber, 2013). However, in recent times, not only the negative deterrent, but the positive legislative power of the president has grown. Since Roosevelt’s time, the president’s legislative initiatives have become institutionalized in the form of detailed bills that are regularly sent to Congress. Moreover, since the time of Roosevelt, the number and role of executive decrees of the president, which have the same mandatory character as the laws of Congress, has sharply increased.
At present, the dynamics of constitutional legal thought in the United States is characterized by the dualism of competing concepts. Researchers mention the doctrines of the dualistic federation (originalism) and the doctrines of the unitarian federation (non-originalism) (Fisher, 2015). It can be argued that the doctrine of the presidential powers that arose during more than two hundred years of interpretation of the US Constitution, increasingly pushes the originalist doctrine of the exclusive powers of Congress into the background. At the same time, inside the space of political interaction between the Congress and the President, there is always a potential for the so-called horizontal conflict of competencies. In particular, the watershed in the history of presidential power was the rule of Roosevelt (Fisher, 2015). The presidential power of the pre-Roosevelt era is denoted as traditional, and the Roosevelt and post-Roosevelt eras – as modern (Thurber, 2013). The main difference between the second and the first was the increase in the powers of the executive branch and the transformation of the president into a dominant figure in state government.
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However, the rise of the presidency in modern times has not freed the presidency from various constitutional restrictions and has not made the president an omnipotent figure. It is clear that Congress has various options to curb excessive presidential ambitions (impeachment is the most radical means), which can also be expanded by lawmakers at a critical moment (for example, the 1973 Congress Act on the Presidential Military Powers) (Chafetz, 2019). This encouraged the presidents to search for non-institutional mechanisms to strengthen their influence, which, in particular, would increase the effectiveness of political influence on the legislative branch – for example, support from the masses of voters.
The practical implementation of the principle of separation of powers actually never completely coincided with the model that was enshrined in the Constitution. The organization, structure, and relations of the three branches of a single state power, like the entire political and legal superstructure, have always been directly dependent on real political, economic, and social relations, on the state of American society. The powers of the executive branch, primarily the president, were expanding, as a rule, in times of crisis, and in the post-crisis periods the legislative branch was trying to restore the balance of the two main branches. In general, the relationship between the two branches of government was in a state of dynamic equilibrium, meaning that the rise of one branch invariably brought to life a counter-tendency to expand the powers of the other, so that the balance of powers envisaged by the founding fathers was restored. It is also obvious that expanding the powers of the executive and legislative branches meant increasing the political weight of each of them, as well as the state as a whole.
Chafetz, J. (2019). Congress’s Constitution: Legislative authority and the separation of powers. New Haven, CT: Yale University Press.
Fisher, L. (2014). Constitutional conflicts between Congress and the President. Lawrence, KS: University Press of Kansas.
Fisher, L. (2015). The law of the executive branch: Presidential power. Oxford, UK: Oxford University Press.
Thurber, J. A. (2013). Rivals for power: Presidential-congressional relations. Lanham, MD: Rowman & Littlefield Publishers.