National Powers

IV.       The Distribution of National Powers

A.  Introduction

 The federal system distributes power vertically–between the nation, on the one hand, and the states, on the other.  But there is also a distribution of powers that exists just as to the national government.  The framers of the Constitution believed that this horizontal separation of government powers did more than any other single thing to prevent to evolution of government into tyranny.  James Madison attempted to set forth the separation of powers, and the precise methods employed to try to achieve it, in The Federalist.

The Federalist No. 47 (Madison)   1787, p. 355.

One specific objection that had been launched against the proposed Constitution was that the maxim of “separation of powers” had been violated rather than vindicated.   Madison attempts to respond to this objection in this Federalist Paper.  Madison contended that Montesquieu–the most oft-cited authority on the concept of separating powers–“did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.”  Madison observes that in reality the state constitutions did not manage to keep the different branches of government “absolutely separate and distinct,” notwithstanding their occasional wording in “emphatical” and “unqualified” terms.  (Cf.  1780 Massachusetts Constitution, art. XXX of Part the First – “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end that it may be a government of laws and not of men.”)

The standard example: when you give the executive (whether governor or president) a power to “veto” legislation, there is a sense in which it appears that you violate the principle set forth in art. XXX of the 1780 Massachusetts Constitution.  After all, the executive “shall never exercise the legislative or judicial powers, or either of them”–it says–even though the veto power quite arguably provides for the executive to “exercise the legislative . . . powers.”  The veto power calls for the executive to exercise the legislative power, since he or she can prevent policy from being adopted as legislation by vetoing a given proposed law.  Hence if it were understood in any literal sense, the whole idea of separation of powers is violated whenever the veto power is exercised.

The Federalist No. 48 (Madison)   (1787), p. 356.

Madison asserts that “unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.”  (356) You should not count on the mere existence of “parchment barriers” to prevent “the encroaching spirit of power.”  (Id.)   In particular, Madison–and many others–expressed concern that the “legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.”  (Id.)  He suggests that “it is against the enterprising ambition of this department that all the people ought to indulge all their jealousy and exhaust all their precautions.”  (Id.)


A conservative think tank here in Nevada relied on the Nevada constitutional provision,  article 3, section 1, which states that the powers of government “shall be divided into three separate departments . . . and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others.”  This group then contended that it is a violation of  article 3 for a state senator to also be an employee of the Public Utilities Commission since the commission is a division of the executive branch.  (see http: // (analyzing this argument))  Yet the employee in question works on the computers at the state utilities commission and has no role in creating or implementing public policy in his executive employment.   (One could say with accuracy that he was/is a “mere employee,” given his role.)  Even so, the argument was advanced that a state legislator holding a job in an executive agency is exercising a power “properly belonging” to a member of the other branch of government.   Does this constitutional objection rely on “the mere existence of ‘parchment barriers,” as warned against by Madison, rather than on the significant purposes of separating the powers at all?   Does this much combining of executive and legislative functions  violate article 3 since it is not “expressly directed or permitted in this constitution”?  

The Theory of Separation and Checks and Balances, p. 356.

1.  In general, p. 356.  The phrase separation of powers, your casebook authors suggest, “captures the constitutional effort to allocate different sorts of power among three governmental entities that are constituted in different ways.”   (356)   But most would agree with them that the phrase “checks and balances” is “in some ways more accurate,” and “focuses on the constitutional effort to ensure that the system will be able to guard against usurpation of authority by any one branch.”  (Id.) Strangely enough, “to some extent the two work against each other.”  (Id.)

They observe (correctly, I think): “The constitutional framework is best understood as a scheme that embodies a partial, rather than complete, separation of powers, and that supplements the separation by creating devices by which each branch can monitor and check the others.”  Moreover, “[i]n order to provide the important checking function, the Constitution had to allow the branches to play a role in functions assigned to the others.”  (357)

2.  The purposes of separation and checks, p. 357.  There are at least two: (1) Promoting efficiency  – separating & assigning particular powers promotes “concentration of executive power in the President, who can act with dispatch.”  (2) Preventing tyranny – By separating powers, to some degree you manage to “diffuse” them, thereby diminishing the likelihood the any branch, or individual, can use power against the citizenry.

An interesting question to ponder: To what extent are these two purposes in tension with each other?   Does this mean that if we decided a case to promote efficiency, we run some risk that we may also be opening the door to the exercise of arbitrary power?

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Thomas McAffee is a Professor of law at William Boyd School of Law at UNLV. He has published numerous articles in law journals including the Harvard Journal of Law and Public Policy, Columbia Law Review, Brigham Young University Law Review, and Temple Law Review and was awarded the Faculty Achievement Award for Scholarship in 1997. His book, Inherent Rights, the Written Constitution, and Popular Sovereignty: The Founders’ Understanding, was published in 2000. Professor McAffee advises the Nevada Law Journal and teaches American Legal History, First Amendment Rights, and Constitutional Law.

One Response to “National Powers” Subscribe

  1. William Heino Sr. September 11, 2013 at 9:41 pm #

    State court violation-separation of powers- DISABLED VETERANS

    The “separation of powers” doctrine is completely ignored by Nevada and most state court judges, acting like doctors, holding themselves as qualified, as a provider of health care, outside their jurisdiction. Substituting their judgment for the judgment of VA doctors and medical professionals awarding as alimony a disabled veterans VA disability compensation. To allow what has been happening, was this the intent of Congress?
    Nevada Constitution Article 3 Section 1 subsection 1
    “The powers of the Government of the State of Nevada shall be divided into three separate departments,—the Legislative,—the Executive and the Judicial; and…”
    If the United State court of appeals, in VETERANS FOR COMMON SENSE, VETERANS UNITED FOR TRUTH, INC., v. ERIC K. SHINSEKI, December 13, 2011, refuses, “As much as we may wish for expeditious improvement in the way the VA handles mental health care and service-related disability compensation, we cannot exceed our jurisdiction to accomplish it,” then, Nevada courts are in no legal position to do so. Despite the law, it continues.
    William Heino Sr.

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