Describe separation of powers and checks and balances in both theory and practice.
The concepts of “separation of powers” and “checks and balances” are essentially the same thing. The purpose of allocating governing powers over different branches (e.g., legislative, executive, and judicial branches) is intended to ensure that no one branch or office can consolidate undue power unto itself at the expense of the others.
“Checks and balances” is the idea behind the separation of powers. What is meant by that phrase is that a governing doctrine or structure is established in such a way that each part of the whole wields sufficient power to prevent that consolidation within one office or branch of government. At a local level, one can think in terms of a judge and/or jury’s ability to contain or limit the powers of the police. Police cannot violate constitutional rights, for instance, when juries sit in judgement and decide against the preferences of a prosecutor and the law enforcement officials he or she represents.
The authors of the Constitution of the United States intended for a robust system of checks and balances to protect against the eventual emergence of a single autocratic figure like the king against whom these individuals were struggling. As such, the document they produced vests considerable power in the hands of a legislature elected by the citizenry. That same document provides for a powerful chief executive—the president—to act as the leader of the citizenry with respect to certain specified responsibilities considered too complex or unwieldy for a large parliamentary body to handle, such as the conduct of foreign policy, the negotiation of treaties, and the command of the armed forces. By the same token, however, the Founding Fathers recognized the perils of vesting such authorities in a chief executive, so they ensured that the chief executive’s powers would be limited. The principal mechanisms provided in this regard are the legislature’s power over the nation’s treasury (i.e., the allocation of revenue accrued through taxation and other sources) and the requirement that the legislature vet and confirm (or reject) the chief executive’s nominees for important positions within the presidential administration. The president of the United States can nominate an individual to serve as secretary of the treasury, for example, but that individual cannot actually assume the position until confirmed by the Senate. Similarly, presidents cannot make laws by themselves, as that responsibility resides, at least officially, with the legislature, and both are almost always needed for legislation to pass into law.
The system of checks and balances established in the Constitution of the United States exists because of the establishment of multiple branches of government, each given authorities designed to prevent the emergence of a dictatorship. That is the theory. In practice, the system established by the Founders has worked well. It is not, however, perfect. Under the Constitution, only Congress can declare war, but presidents can and do start wars without the consent of the governed by virtue of their power as commander-in-chief of the armed forces. And, of equal importance, presidents have routinely circumvented the Constitution’s provisions and the Founders’ intent with respect to the making of laws—a process that was supposed to involve both the legislative and the executive branches functioning in a symbiotic relationship. Presidents have often used “Executive Orders” to impose legally-binding measures on the citizenry and on agencies of the federal government which cannot function without the funding provided by Congress. Herein lies one of the greatest weaknesses of the system of government formulated by the Founders: history has repeatedly demonstrated the extreme reluctance on the part of Congress to use its “power of the purse” to limit executive powers. Congress can stop a war by refusing to allocate money from the nation’s treasury for the military. It almost never actually does, however, because of the impact on military families and because members of the legislature do not wish to be seen as failing to support soldiers in the field.
Both concepts are very closely related to one another. The theoretical understanding of separation of powers is when the powers of government are parceled out to different branches. Consider the tree metaphor here. The base of the tree is where its roots exist and this is the element of power that gives reason to its being. The roots at the base of the tree represents the government's power. As the tree grows, the branches spread out and these branches represent the separation of powers in government. The branches are extensions and different reflections of the base power in government. Each branch is unique and represents the overall distribution of power in government.
A practical example of separation of powers is a government that has legislative, executive, and judicial branches of government. A legislative branch is the lawmaking portion of governmental power. The executive branch embodies the means of enforcing the laws of government power, and the judicial branch oversees the enforcement and construction of laws to ensure that they are operating within the framework of the founding charters of governmental power. The presence of these three branches in any government would be a practical example of separation of powers.
Checks and balances is closely related to separation of powers. In the checks and balances configuration, each branch of government is limited by the other branches of government. Checks and balances ensures that one branch is not too powerful in the exercise of government power. In the construction of checks and balances, power is seen as something potent that has to be limited so that it is not abused. To balance out power, it is limited or checked by other branches.
Checks and balances can be seen in the daily practice of government. For example, in the United States' configuration of government, the legislative branch is checked by the executive branch in that the executive branch signs into law what is agreed upon in the legislative branch. A bill from the legislative branch does not become law unless the executive branch signs it. Another practical example of this is how the executive branch is limited in the legislative branch's ability to make the laws. Finally, the judicial branch checks the power of both legislative and executive branches by declaring laws and acts unconstitutional. In this understanding, the practical elements of checks and balances ensures that the branches of government must work together in order to ensure the smooth functioning of the nation's exercise of governmental power.