BASIC CONCEPTS TO BE INCLUDED IN THE LESSON:

• The Constitution separated power into 3 equal branches of government so that no one branch of government would become too powerful.
• The federal legislative branch -- the Congress which is created by Article 1 -- has the power to pass laws.
• The federal executive branch -- that is the President and executive agencies created by Article 2 -- has the power to administer the laws and to conduct foreign policy.  The President is also the commander in chief of the nation's armed forces.
• The federal judicial branch, i.e. the U.S. Supreme Court and lower federal courts, created by Article 3 -- has the power to interpret and enforce the laws and is the final arbiter of the meaning of the Constitution

I. Our Constitution:  A Conversation with Supreme Court Justices Justice O’Connor and Breyer. 

In this DVD, taped on June 5, 2005, the Justices explain the importance of the separation of powers. Watch a portion of the video here or download a copy for your classroom.

II. Balancing Power, Protecting Individual Rights

This video produced by PJ Productions, examines the concept of separation of powers by focusing on the landmark case of Youngstown Sheet & Tube Co. v. Sawyer.   Watch this portion of the video here or download a copy for your classroom.

III. Domestic Spying, What are the Checks on Presidential Power?

This Justice Talking debate examines President Bush’s decision to authorize the National Security Agency to eavesdrop on suspected terrorists within the United States without obtaining court approval. Tune in here as Justice Talking takes a look at U.S. intelligence policies and asks whether they are legal and effective at safeguarding the homeland.  You can also download the program; obtain a transcript, find a listening and learning guide on the issue and sign up for regular podcasts from Justice Talking.

ADDITIONAL RESOURCES:

1. The Fight Over the Watergate Tapes 

• The Fight Over the Watergate Tapes

• U.S. Supreme Court case, Nixon v. United States (1974)

2. Each of the 50 states has replicated the separation of powers at the state and local level.  For more information about how government is divided at the local level visit the Student Voices Glossary of Local Government Terms

1.  What is the Meaning of Separation of Powers?

The framers of the Constitution separated the powers of government into three branches, granting legislative power (the power to pass laws) to Congress in Article 1 of the Constitution.  The Constitution granted executive power (the power to administer the laws) to the president in Article 2 and judicial power (the power to interpret and enforce the laws) to the courts in Article 3.

The framers believed that this separation of powers would ensure that no one person or group of persons would be able to create, administer, and enforce the laws at the same time.  Each branch of government would be a check on the power of the other two branches. In some instances, two branches of government are required to work together. For example, the Senate must approve the president’s appointments to the Supreme Court. The president has the power to veto acts of Congress or to pardon convicted criminals and Congress can impeach the President and federal court justices and judges.  Although the system of checks and balances makes government less efficient, that is really the point.  The framers believed that forcing the different branches of government to contend with each other and work together would lead to more thoughtful lawmaking and ensure that no single person or group would be able to control the entire process.

2. What Are the Powers of Each Branch of Government?

The Legislative Branch:

The Legislative Branch of the federal government is the Congress which is composed of two law-making chambers each of which must approve new legislation.  The Constitution places checks on Congressional power in several ways.  It strictly limits the areas in which Congress can legislate. It gives the President the power to veto legislation (and requires a supermajority of Congress to override that veto) and through executive agencies, the power to enforce the law.  And the federal courts have the power to review the constitutionality of any federal law and where there is a controversy about what the law means, interpret its meaning.

The House of Representatives

Article I, Section 2 specifies that the House of Representatives be composed of members who are chosen every two years by the people of the states. There are only three qualifications: a representative must be at least twenty-five years old, must have been a citizen of the United States for at least seven years, and must live in the state from which he or she is chosen. Efforts by both Congress and the states to add requirements for office, such as durational residency requirements or loyalty oaths, have been rejected by Congress and the courts.

Article I, Section 2 also creates the way in which congressional districts are to be divided among the states. A difficult and critical sticking point at the Constitutional Convention was how to count a state’s population, particularly whether slaves would be counted for purposes of both representation and taxation. If slaves were considered property, they would not be counted at all; if they were considered persons, they would be counted fully—just as women, children, and others who could not vote were counted. Ironically, Southern slave-owners, who considered slaves their property, wanted slaves to be fully counted in order to increase their own political power in Congress. After extended debate, the framers agreed to the three-fifths compromise—three-fifths of the total number of slaves would be included in a state’s population total (note that the framers never use the word slaves in the document). Following the Civil War, the formula was changed with the passage of Amendment XIII, which abolished slavery, and Amendment XIV, Section 2, which specifically repealed the three-fifths rule.

Based on a census conducted every 10 years, Congress must determine how many representatives (at least one required) are to come from each state. The Constitution itself set the number of House members from each of the original thirteen states that was used until the completion of the first census. In 1929 Congress limited the House of Representatives to 435 members and established a formula to determine how many districts would be in each state. For example, following the 2000 census, southern and western states like Texas, Florida and California gained population and thus added representatives, while northern states like Pennsylvania lost several members.

Congress left it to state legislatures to draw district lines. As a result, at the time of a census, the political party in power in each state legislature is able to define new districts that favor its own candidates, affecting who can win elections for the House of Representatives in the following decade. This process—redrawing district lines to favor a particular party— is often referred to as gerrymandering.

The Senate

The Senate, which now has one hundred members, has two senators from each state. Until 1913, senators were elected by their state legislatures. But with the adoption of Amendment XVII, senators have been elected directly by the people of each state. There are several exclusive requirements to be a senator: he or she must be over thirty years of age, must have been an American citizen for at least nine years, and must live in the state he or she represents. Senators can serve for an unlimited number of six-year terms.

Senatorial elections are held on a staggered basis so that one-third of the Senate is elected every two years. If a senator leaves office before the end of his or her term, Amendment XVII  now provides that the governor of his or her state sets the time for a new election. The state legislature may authorize the governor to temporarily fill the vacant seat.

The vice president of the United States is also the president of the Senate. He or she normally has no vote but can act as a tiebreaker if the Senate is equally divided on a proposed bill or nomination. The Senate also chooses officers to lead them through their work. One of the officers, the president pro tempore (“president for a time”), presides over the Senate when the vice president is not available and, like the Speaker of the House, is in the line of succession should the president or the vice president be unable to serve.

The Executive Branch:

Article II, Section 1 establishes that the president has the power to run the executive branch of the government. This section, later modified by Amendment XII and Amendment XXV, outlines who is eligible to serve as president, establishes the Electoral College (the means by which the president and vice president are elected), and authorizes Congress to determine who will replace the president and vice president should they be unable to serve during their term of office.

Article II, Section 1 establishes that the president and vice president are to be elected at the same time and serve the same four-year term. Until 1951, presidents could serve for as many four-year terms as they could win. But after President Franklin D. Roosevelt was elected for four terms, Congress passed and the states ratified Amendment XII which limits a president to two terms (eight years) in office. Amendment XXV added in 1967, modified the line of succession, that is who takes over for a president who is unable to continue to serve or has died in office.    

Rather than being elected directly by the people, the president is elected by members of the Electoral College, which is created by Article II, Section 1.  It is not really a “college,” but a group of people who are elected by the states. Each state is entitled to the number of electors equal to the combined number of their representatives and senators in Congress.  Each state legislature decides how members of the Electoral College are to be selected and how they are to vote.

There are three minimum requirements to be elected president: one must be a natural born citizen of the United States; must have lived in the United States for at least fourteen years, and must be at least thirty-five years old.

As chief executive, the president runs the different executive agencies, like the Department of the Treasury or the Department of Health and Human Services. The president serves not only as the head of the executive branch of government, but also as the commander in chief of the armed forces (including state national guards when they are called on to serve with the federal armed forces).

The Constitution has established many checks on Presidential power.  For example, the President needs permission from two-thirds of the Senators present, in order to make treaties (agreements) with other countries. The President has the power to make a number of key appointments such as Supreme Court Justices, Cabinet officers and ambassadors, but needs the approval of a majority of senators.  The Congress retains the power to impeach and convict a President for high crimes and misdemeanors. Where there is a controversy, the federal courts have the power to review the constitutionality of executive branch actions.  

The Judicial Branch:

Article III of the Constitution establishes the federal court system. The first section creates the U.S. Supreme Court as the federal system’s highest court. The Supreme Court has final say on matters of federal law that come before it. Today, the U.S. Supreme Court has nine justices who are appointed by the president with the approval of the Senate.

In 1803, in the case of Marbury v. Madison, the Supreme Court, in an opinion written by Chief Justice John Marshall, interpreted Article III and Article VI to give the federal courts final say over the meaning of the federal Constitution and federal laws as well as  the power to order state and federal officials to comply with its rulings. The federal courts also decide cases about our nation’s rights and responsibilities in agreements with other nations, disputes that may arise between states, between citizens of different states and between states and the federal government.  The courts are charged with ensuring that the three branches act independently and do not overreach their delegated powers.

Congress has the power to create and organize the lower federal courts. Today, there are lower federal courts in every state. A case is filed and tried in the federal district courts and in some specialty courts, like admiralty or bankruptcy courts. The trial courts look at the facts of the case and decide guilt or innocence or which side is right in an argument or dispute. The courts of appeal hear appeals of the losing parties. The appellate courts look at whether the trial was fair, whether the process followed the rules, and whether the law was correctly applied.

The federal courts can only make decisions on cases that are brought to them by a person who is actually affected by the law. Federal courts are not allowed to create cases on their own—even if they believe a law is unconstitutional nor are they allowed to rule on hypothetical scenarios.

Almost all federal cases start in federal district courts, where motions are decided and trials held. The cases are then heard on appeal by the federal courts of appeal and then by the Supreme Court if four justices of the nine-member Court decide to hear the case. State cases that involve an issue of federal law can also be heard by the Supreme Court after the highest court in the state rules (or refuses to rule) in the case. The Supreme Court accepts only a small number of cases for review, typically around eighty cases each year. In a small number of lawsuits—those involving ambassadors, public ministers and consuls, or where a state is a party—the Supreme Court is the first court to hear the case.  The federal courts also have final say over guilt or innocence in federal criminal cases. A defendant in a criminal case, except impeachment, has a right to have his or her case heard by a jury in the state where the crime occurred.  

The Constitution however places checks on the federal courts in a variety of ways.  It specifically limits the types of cases it can hear.  Although to federal judges are appointed for life, Congress retains the power to impeach a judge for committing a serious crime. And Congress can limit the power of the courts by changing the rules about which cases can be appealed.  

TEACHING TIPS AND TOOLS:

Throughout history there have been many instances when the three branches of government have been at odds and the fight between them have sparked national debate.   At some times, the President has taken actions which the Congress and the Courts believe exceeded presidential power.  In other instances the Congress overstepped their powers or the Courts have taken steps which another branch of government believed to be beyond the designated powers contained within the Constitution.   Use the following three resources to bring these debates into your classroom.

I.  Our Constitution:  A Conversation with Supreme Court Justices Justice O’Connor and Breyer. 

In this DVD, taped on June 5, 2005, the Justices answer questions from Philadelphia-area high school students.  They explain the importance of the separation of powers in the Constitution. Watch portions of the video here or download a copy for your classroom.

II.  President Truman and the Seizure of the Steel Mills

Balancing Power, Protecting Individual Rights is a DVD produced by PJ Productions that examines the concept of separation of powers.  It focuses on the landmark case of Youngstown Sheet & Tube Co. v. Sawyer.   Watch the video here or download a copy for your classroom. 

In 1952, during the Korean War, the Steelworkers threatened a strike that would have shut down all American steel mills. Believing that the shut-down of the mills would be catastrophic for the war effort, President Truman went on national television and announced that he was directing the Secretary of Commerce to take over the steel mills and prevent them from being closed.  By the next morning federal flags were flying over each of the factories and a national firestorm about executive power, national security, private property and labor relations began. 

President Truman argued that he had the power to seize the mills in an emergency, because under the Constitution he has the power to wage war and safeguard our national security. [Ironically, Congress had never officially declared that the Korean “conflict” was a war, but they did authorize monies for the military effort]. 

President Truman took this action despite the fact that there was no law passed by Congress that authorized him to seize the mills in an emergency. In fact, in 1947, when Congress had passed the Taft-Hartley Act, a comprehensive law about labor relations, it had specifically decided not to give the president the power to seize an industry in an emergency. 

In the Youngstown case, the Supreme Court was asked to decide whether the President had the inherent power, acting alone under Article II, to seize the mills. The Court ruled 6-3 that he did not. Justice Hugo Black wrote the majority opinion which found that Article II of the Constitution does not give the president power to seize the mills.  Further, because Congress didn’t give the President that power either, the seizure was illegal.  The Court interpreted the meaning of Article II, which states that the "executive power shall be vested in a President," in a narrow fashion.  Justice Jackson wrote a concurring opinion which in later years has been considered very important.  He said that there are three ways of considering presidential action.

• First, if the President’s actions are backed by law or the implied authorization of Congress, the president’s powers are strong and he is able to act.
• Second, if the president acts but there is no law --- Congress, is silent, or not clearly on record one way or the other, the president is in what Jackson called “a zone of twilight,” more like a definite maybe as to whether the president can act.
• Third, if he acts against the will of Congress, that is, Congress has either expressly written a law saying he can’t do something or implied he can’t, as in the case of Taft-Hartley, where Congress chose not to give him the power to act, then presidential power is at its weakest.  And if they have to, the courts can step in to stop him.

Youngstown made clear that the President of the United States does not have the authority of a King, even when the President’s powers are at their height.  The president is limited by the guarantees of the Constitution.

III. President Bush and the Debate Over NSA Spying

Many of the issues raised by President Truman’s seizure of the steel mills continue to be debated today, particularly questions about Presidential powers to protect Americans during times of war.  Most recently after news reports in the New York Times, the Bush Administration has admitted it authorized the National Security Agency to eavesdrop on suspected terrorists within the United States without obtaining court approval. Although the President claims he is authorized to conduct the wiretaps because of inherent Presidential powers and because of Congressional action allowing the invasion of Afghanistan and Iraq, the limits of executive power and the role of the courts in checking Presidential action is raised by these actions.  Justice Talking, an NPR radio program, produced by the Annenberg Public Policy Center, recently released an hour long program on this controversy:  Domestic Spying What are the Checks on Presidential Power?  Tune in here as Justice Talking takes a look at U.S. intelligence policies and asks whether they are legal and effective at safeguarding the homeland.  You can also download the program; obtain a transcript, find a listening and learning guide on the issue and sign up for regular podcasts from Justice Talking.