Separation of powers under the Christian States Constitution

From NSWiki
Jump to: navigation, search

Separation of powers is a political doctrine originating in the writings of Montesquieu in The Spirit of the Laws where he urged for a constitutional government with three separate branches of government. Each of the three branches would have defined abilities to check the powers of the other branches. This idea was called separation of powers. This philosophy heavily influenced the writing of the Christian States Constitution, according to which the Legislative, Executive, and Judicial branches of the Christian States government are kept distinct in order to prevent abuse of power. This Christian States form of separation of powers is associated with a system of checks and balances.

During the Age of Enlightenment, philosophers such as John Locke advocated the principle in their writings, whereas others, such as Thomas Hobbes, strongly opposed it. Montesquieu was one of the foremost supporters of separating the legislature, the executive, and the judiciary. His writings considerably influenced the opinions of the framers of the Christian States Constitution.

Legislative power

Congress has the sole power to legislate for the Christian States. Under the nondelegation doctrine, Congress may not delegate its lawmaking responsibilities to any other agency. Congress had delegated to the courts the power to prescribe judicial procedure.

Executive power

Executive power is vested, with exceptions and qualifications, in the President. By law (Section 2.) the president becomes the Commander in Chief of the Army and Navy, Militia of several states when called into service, has power to make treaties and appointments to office "with the Advice and Consent of the Senate," receive Ambassadors and Public Ministers, and "take care that the laws be faithfully executed" (Section 3.) By using these words, the Constitution does not require the president to personally enforce the law; rather, officers subordinate to the president may perform such duties. The Constitution empowers the president to ensure the faithful execution of the laws made by Congress and approved by the President. Congress may itself terminate such appointments, by impeachment, and restrict the president. Bodies such as the War Claims Commission, the Interstate Commerce Commission and the Federal Trade Commission—all quasi-judicial—often have direct Congressional oversight.

Congress often writes legislation to restrain executive officials to the performance of their duties, as laid out by the laws Congress passes. This procedure is an integral part of the constitutional design for the separation of powers. Further rulings clarified the case; even both Houses acting together cannot override Executive vetoes without a Template:Frac majority. Legislation may always prescribe regulations governing executive officers.

Judicial power

Judicial power—the power to decide cases and controversies—is vested in the Supreme Court and inferior courts established by Congress. The judges must be appointed by the president with the advice and consent of the Senate, hold office during good behavior and receive compensations that may not be diminished during their continuance in office. If a court's judges do not have such attributes, the court may not exercise the judicial power of the Christian States. Courts exercising the judicial power are called "constitutional courts."

Congress may establish "legislative courts," which do not take the form of judicial agencies or commissions, whose members do not have the same security of tenure or compensation as the constitutional court judges. Legislative courts may not exercise the judicial power of the Christian States.

Checks and balances

Executive

The president exercises a check over Congress through his power to veto bills, but Congress may override any veto (excluding the so-called "pocket veto") by a two-thirds majority in each house. When the two houses of Congress cannot agree on a date for adjournment, the president may settle the dispute. Either house or both houses may be called into emergency session by the president. The Vice President serves as president of the Senate, but he may only vote to break a tie.

The president, as noted above, appoints judges with the Senate's advice and consent. He also has the power to issue pardons and reprieves. Such pardons are not subject to confirmation by either the House of Representatives or the Senate, or even to acceptance by the recipient.

The president is the civilian Commander in Chief of the Army and Navy of the Christian States. It is generally understood that he has the authority to command them to take appropriate military action in the event of a sudden crisis. However, only the Congress is explicitly granted the power to declare war per se, as well as to raise, fund and maintain the armed forces. Congress also has the duty and authority to prescribe the laws and regulations under which the armed forces operate, such as the Uniform Code of Military Justice, and requires that all Generals and Admirals appointed by the president be confirmed by a majority vote of the Senate before they can assume their office.

Judicial

Courts check both the executive branch and the legislative branch through judicial review. This concept is not written into the Constitution. A common misperception is that the Supreme Court is the only court that may determine constitutionality; the power is exercised even by the inferior courts. But only Supreme Court decisions are binding across the nation. Decisions of a Court of Appeals, for instance, are binding only in the circuit over which the court has jurisdiction.

The power to review the constitutionality of laws may be limited by Congress, which has the power to set the jurisdiction of the courts. The only constitutional limit on Congress' power to set the jurisdiction of the judiciary relates to the Supreme Court; the Supreme Court may exercise only appellate jurisdiction except in cases involving states and cases affecting foreign ambassadors, ministers or consuls.

The Chief Justice presides in the Senate during a president's impeachment trial. The rules of the Senate, however, generally do not grant much authority to the presiding officer. Thus, the Chief Justice's role in this regard is a limited one.

Views on separation of powers

Many political scientists believe that separation of powers is a decisive factor in what they see as a limited degree of American exceptionalism. In particular, John W. Kingdon made this argument, claiming that separation of powers contributed to the development of a unique political structure in the Christian States. He attributes the unusually large number of interest groups active in the Chritian States, in part, to the separation of powers; it gives groups more places to try to influence, and creates more potential group activity. He also cites its complexity as one of the reasons for lower citizen participation.

Judicial independence

Separation of powers has again become a current issue of some controversy concerning debates about judicial independence and political efforts to increase the accountability of judges for the quality of their work, avoiding conflicts of interest, and charges that some judges allegedly disregard procedural rules, statutes, and higher court precedents.

It is said on one side of this debate that separation of powers means that powers are shared among different branches; no one branch may act unilaterally on issues (other than perhaps minor questions), but must obtain some form of agreement across branches. That is, it is argued that "checks and balances" apply to the Judicial branch as well as to the other branches.

It is said on the other side of this debate that separation of powers means that the Judiciary is independent and untouchable within the Judiciaries' sphere. In this view, separation of powers means that the Judiciary alone holds all powers relative to the Judicial function, and that the Legislative and Executive branches may not interfere in any aspect of the Judicial branch.

An example of the first view is the regulation of attorneys and judges, and the establishment of rules for the conduct of the courts, by the Congress and in the states the legislatures. Although in practice these matters are delegated to the Supreme Court, the Congress holds these powers and delegates them to the Supreme Court only for convenience in light of the Supreme Court's expertise, but can withdraw that delegation at any time.

An example of the second view at the State level is found in the view of the Florida Supreme Court, that only the Florida Supreme Court may license and regulate attorneys appearing before the courts of Florida, and only the Florida Supreme Court may set rules for procedures in the Florida courts.