Why it is important that there is a separation of power among executive legislative and judiciary department?

What Is Separation of Powers?

Separation of powers is an organizational structure where responsibilities, authorities, and powers are divided between groups rather than being centrally held.

Separation of powers is most closely associated with political systems, in which the legislative, executive, and judicial powers of government are vested in separate bodies.

Key Takeaways

• Separation of powers is an organizational structure where responsibilities, authorities, and powers are divided between groups rather than being centrally held.
• Separation of powers is most closely associated with political systems, in which the legislative, executive, and judicial powers of government are vested in separate bodies.
• In the U.S. and U.K. separation of powers is the tripartite system whose intent is to provide checks-and-balances for the different branches.

Understanding Separation of Powers

Separation of powers refers to the division of powers into distinct branches of government, each with their own responsibilities. The intent of separation of powers is to prevent the concentration of unchecked power and to provide for checks and balances, in which the powers of one branch of government is limited by the powers of another branch—to prevent abuses of power and avoid autocracy.

The most well-known example of separation of powers is the tripartite system found in the United States and the United Kingdom, in which there are three individual branches of government: the executive branch, the legislative branch, and the judicial branch. Each has distinct powers, though some states in the U.S. use the bipartite system, which assigns powers to two separate groups.

In the U.S., the powers afforded to the judicial, legislative, and executive branches are defined in the Constitution. Governmental authority is divided between the executive branch (controlled by the President), the legislative branch (controlled by Congress), and the judicial branch (controlled by the Supreme Court). For example, in the U.S., the executive branch nominates judges, the legislative branch confirms the nominations, and the judicial branch adjudicates on the constitutional merit of the laws passed by the legislature.

In business, the CEO and chair positions are often separated to prevent abuse of power.

While the separation of powers is most closely associated with politics, this type of system can also be used in other organizations. For example, there are good reasons to separate the positions of the chief executive officer (CEO) and chair, in order to increase checks and balances and give corporate governance real integrity. Because the board of directors’ main job is to oversee management on behalf of shareholders, CEOs who hold both roles are effectively monitoring themselves, which leads to potential abuses of power and reduced transparency and accountability.

Example of Separation of Powers

In 2018, Elon Musk came under increasing criticism for holding both the CEO and chair roles at Tesla, the electric vehicle and clean energy company. He made outlandish claims about the potential of Tesla’s technology, which led to concerns that Musk might be misleading investors.

After the Securities and Exchange Commission (SEC) charged Theranos with massive fraud, for deceiving investors about the company's performance, the claims made by Silicon Valley companies, both public and private, have come under greater scrutiny. As Tesla struggled to contain cost and ramp up production of its Model 3 sedans, activist investors asked the board to consider a motion to fire Musk from his chair of the board position and replace board members who lack independence from chair and CEO Elon Musk.

Main content

The U.S. Constitution establishes three separate but equal branches of government: the legislative branch (makes the law), the executive branch (enforces the law), and the judicial branch (interprets the law). The Framers structured the government in this way to prevent one branch of government from becoming too powerful, and to create a system of checks and balances.

Under this system of checks and balances, there is an interplay of power among the three branches. Each branch has its own authority, but also must depend on the authority of the other branches for the government to function.

U.S. v. Alvarez is an excellent example of how the three branches each exercise their authority.

In a Nutshell

• The Legislative Branch – Congress – passed the Stolen Valor Act of 2005, punishing those who misrepresent that they have received high military honors.
• The Judicial Branch – the Supreme Court of the United States – ruled in 2012 that the Act was unconstitutional because it infringed on the right to free speech protected by the First Amendment.
• The Executive Branch – the Pentagon and the President – took action within a month of the Supreme Court's decision establishing a government-funded national database of medal citations – phased in over time – to enable verification of military honors.
• The Legislative Branch – Less than a year after Alvarez was decided, Congress responded with legislation that sought to remedy the constitutional problems in the 2005 legislation, which the Supreme Court decided in U.S. v. Alvarez were in violation of the First Amendment.

  The new legislation continues the prohibition on false claims of military honors in instances outside the protection of the First Amendment. However, the Stolen Valor Act of 2013 narrowed the original legislation in the following ways:

  • Repealed the prohibition against wearing such awards without legal authorization.
  • Limited the prohibition to wearers who act "fraudulently" and "with intent to obtain money, property, or other tangible benefit."
  • Limited the prohibition to the Congressional Medal of Honor and certain, specified decorations or medals.  

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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