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Constitution Basics: Separation of Powers

The separation of powers is one of the most well-known concepts in constitutional law. Although the text of the Constitution does not require these divisions between the three main branches of government (legislative, executive, judicial), the way the document lays out each branch's power ensures very little overlap. The separation of powers, along with checks and balances, was the solution the Founders came up with to avoid what they viewed as the tyranny of the monarchy.

What Does Separation of Powers Mean?

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

A well-known concept derived from the text and structure of the Constitution is the doctrine of what is commonly called separation of powers. The Framers' experience with the British monarchy informed their belief that the concentration of distinct governmental powers in a single entity would subject the nation's people to arbitrary and oppressive government action.1 Thus, in order to preserve individual liberty, the Framers sought to ensure that a separate and independent branch of the federal government would exercise each of the government's three basic functions: legislative, executive, and judicial.2

While the text of the Constitution does not expressly refer to the doctrine of separation of powers, the nation's founding document divides governmental power among three branches by vesting the legislative power of the federal government in Congress;3 the executive power in the President;4 and the judicial power in the Supreme Court and any lower courts created by Congress.5

Although the Framers of the Constitution allocated each of these core functions to a distinct branch of government, the design of the Constitution contemplates some overlap in the branches' performance of government functions.6 In particular, the Framers favored an approach that seeks to maintain some independence for each branch while promoting a workable government through the interdependence and sharing of power among the branches.7

Moreover, to address concerns that one branch would aggrandize its power by attempting to exercise powers assigned to another branch, the Framers incorporated various checks that each branch could exercise against the actions of the other two branches to resist such encroachments.8 For example, the President has the power to veto legislation passed by Congress, but Congress may overrule such vetoes by a supermajority vote of both houses.9 And Congress has the power to impeach and remove the President, Vice President, and civil officers of the United States.10

Supreme Court Interpretation of Separation of Powers

Over the course of our history, the Supreme Court has elaborated on the separation-of-powers doctrine in several cases addressing the three branches of government. At times, the Court has determined that one branch's actions have infringed upon the core functions of another. For instance, the Court has held that Congress may not encroach upon the President's power by exercising effective veto power over the President's removal of an executive officer.11

Furthermore, the President may not, by issuing an executive order, usurp the lawmaking powers of Congress.12 The Supreme Court has also held that the Constitution prevents the judiciary from exercising legislative or executive power by vindicating the rights of the public at large rather than those of a specific individual in a case properly before the court.13 When ruling on whether one branch has usurped the authority of another in separation-of-powers cases, the Court has sometimes adopted a formalist approach to constitutional interpretation, which closely adheres to the structural divisions in the Constitution14 and, at other times, has embraced a functionalist approach, which examines the core functions of each of the branches and asks whether an overlap in these functions upsets the equilibrium that the Framers sought to maintain.15

As discussed in the Constitution Annotated, the Court's decisions in separation-of-powers cases often—but not exclusively—address the relationships that the first three Articles of the Constitution establish among the branches of government. Some key constitutional provisions that have served as sources of modern separation-of-powers disputes include:

Other provisions of the Constitution outside of the first three Articles also implicate the separation-of-powers doctrine. For example, the Supreme Court in Marbury v. Madison interpreted Article VI's establishment of the Constitution as being superior to other federal law to forbid Congress from exercising its legislative power in a manner inconsistent with the nation's founding document by enlarging the original jurisdiction of the Supreme Court beyond the boundaries established in Article III.21 And the amendments to the Constitution also set forth some important structural features of the separation of powers, as well. For instance, the Twelfth Amendment establishes the process for choosing the President and Vice President, specifically delineating the functions of both houses of Congress in counting and certifying the votes for President and the role of the House of Representatives in choosing a President when no candidate has attained a majority of electoral votes.22

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  1. The Federalist No. 48, at 276 (James Madison) (Clinton Rossiter ed., 1999) ([T]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.).
  2. See id. No. 47, at 268 (James Madison) (explaining that the preservation of liberty requires that the three great departments of power should be separate and distinct).
  3. U.S. Const. art. I, § 1.
  4. Id. art. II, § 1.
  5. Id. art. III, § 1. See also Black's Law Dictionary 1572 (10th ed. 2014) (defining separation of powers as the division of governmental authority into three branches of government—legislative, executive, and judicial—each with specified duties on which neither of the other branches can encroach).
  6. Buckley v. Valeo, 424 U.S. 1, 121 (1976) (per curiam) ([A] hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.); Youngtown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) ([W]hile the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.).
  7. See supra note 6.
  8. The Federalist No. 51, at 288 (James Madison) (Clinton Rossiter ed., 1999) (But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition.); id. No. 48, at 276 (James Madison) (The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.). See generally Buckley, 424 U.S. at 122 (The Framers regarded the checks and balances that they had built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.); Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting) (The doctrine of the separation of powers was adopted by the convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy).
  9. U.S. Const. art. I, § 7, cl. 3.
  10. Id. art. II, § 4.
  11. Myers, 272 U.S. at 161.
  12. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).
  13. Lujan v. Defenders of Wildlife, 504 U.S. 555, 576–77 (1992).
  14. Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions—A Foolish Inconsistency?, 72 Cornell L. Rev. 488, 489 (1987) (The Supreme Court has vacillated over the years between using a formalistic approach to separation-of-powers issues grounded in the perceived necessity of maintaining three distinct branches of government (and consequently appearing to draw rather sharp boundaries), and a functional approach that stresses core function and relationship, and permits a good deal of flexibility when these attributes are not threatened.).
  15. Id.
  16. See, e.g.Clinton v. City of New York, 524 U.S. 417, 439–40 (1998) (striking down the Line Item Veto Act, which authorized the President, within five days of signing a bill into law, to make partial cancellation of certain tax and spending provisions in the law if the President determined certain criteria were met, as violating the bicameralism and presentment requirements of Article I, Section 7, Clauses 2–3 of the Constitution).
  17. See, e.g.Zivotofsky v. Kerry, 576 U.S. 1, 33 (2015) (Thomas, J., concurring in the judgment in part and dissenting in part) ([The Constitution] vests the residual foreign affairs powers of the Federal Government—i.e., those not specifically enumerated in the Constitution—in the President by way of Article II's Vesting Clause.); Myers v. United States, 272 U.S. 52, 161 (1926) (holding that Congress cannot veto the President's removal of an executive officer).
  18. See, e.g.Morrison v. Olson, 487 U.S. 654, 660 (1988) (holding that the Ethics in Government Act of 1978, which allowed for the appointment of an independent counsel by a special panel of a federal court to investigate potential violations of criminal laws by federal officials, did not violate the Appointments Clause).
  19. See, e.g.Miller v. French, 530 U.S. 327, 341–50 (2000) (holding that a provision in the Prison Litigation Reform Act of 1995 providing for an automatic stay of court orders enjoining unlawful prison conditions did not violate the separation-of-powers doctrine by infringing upon the judiciary's Article III powers).
  20. See, e.g.Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803) (The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by [Article III, Section 2 of] the constitution . . .).
  21. Id. at 180 ([I]n declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.). See also U.S. Const. art. VI.
  22. U.S. Const. amend. XII (The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.).



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