Q2: What is Montesquieu Theory of Separation of Powers?

Throw light on the

veto power of the president in the context of checks and balances doctrine.

Ans: Montesquieu was the first political writer who first formulated the principles
of separation of powers and the independence of justice. He was the first to
scientifically study human institutions, both ancient and modern, Asiatic and
European, African and American.

The separation of powers is a widely regarded as one of the pillars of a liberal

constitutional democracy. The separation of powers attempts to prevent power
being concentrated in a single person or body. It provides mechanism to make it
difficult for any simple group to dominate and to ensure that government actions
require the cooperation of different groups, each of which helps to keep other
within bounds.

Montesquieu presented the idea of Trias Politica. Montesquieu divided government

into three branches: the legislature, the executive and the judiciary. The legislature
makes the laws, the executive forces and puts the law into effect and judiciary
settles disputes and imposes sanctions for breaking the law. According to the
doctrine of Separation of Powers, each branch has different function to do but each
branch uses its power to check and control abuse by other branches. Conversely,
within the limits of its power, each branch should be independent of the others.

What will happen if absolute power happen?

According to Montesquieu, if a body is given absolute power without control of

other body, the body will become invincible to other body and he will absolutely
corrupt himself. “all great men are bad”

How to prevent it from happen?

Again, according to Montesquieu, the power must be separated to avoid absolute

power . When there’s separation of powers, there will be “ check and balance “.

Separation of Powers in context of U.S.:

The constitution contains no provision expressly declaring that the powers of the
three branches of the federal government shall be separated.

The first article of constitution says "all legislative powers shall be vested in
congress", Second article vests "the executive power in the president", the third
article places the "judicial power of the United States in one Supreme Court and in
such inferior courts as the congress may establish".

The Legislative: The legislative branch consists of House of Representatives and

senate which is called congress. Congress has the sole power to legislate for the
United States under the non delegation doctrine. Congress may not delegate its
lawmaking responsibilities to any other agency. Congress delegated the power to
prescribe judicial procedure to the courts. it was contended that congress had
unconstitutionally clothed judiciary with the legislative powers. The powers of
Legislature are checked by the veto power of the president and by the judicial
review where court can declare and act of the congress to be unconstitutional and
void. The veto can be overruled by congress if the same bill is passed by both
houses in the same manner by 2/3rd majority. The power to review the
constitutionality of laws may be limited by Congress, which has the power to set
the jurisdiction of the courts.

Executive: Executive power is vested with exceptions and qualifications in the

president of United States. By law, the president becomes the commander in chief
of army, navy and militia of several states when called into service. The president
has the power to "with advice and consent of the Senate" to make treaties and
appointments of office, receive ambassadors and public ministers and take care
that laws be faithfully executed. The constitution gives power to the president to
take care of the faithful execution of law and where he thinks that the law is not
faithful he can veto a bill presented to him. The President also can be restricted by
the Congress and he can be removed from his office upon impeachment. The
executive power of president are also checked by the Judicial Review, in which the
courts can restrain the President from exercising his powers in certain areas which
the court thinks that the exercise of such powers in unconstitutional.

Judicial: Courts check both executive and the legislative branches through judicial
review. This concept is not written in the constitution but was envisioned by many
of the constitution's framers. The supreme court later established a precedent of
judicial review in Marbury v Madison case.

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 'the power to set the jurisdiction of judiciary relates to the
Supreme Court.

President appoints judges who must be confirmed by Senate.

Veto power of the President.

Article 1 Section 7 of the Constitution of United States details how bills become
law and describes the veto power of the President. Following is the process.

• First any bill for raising money must originate in the House of Representatives.
All bills must pass both the houses in the exact same form.

• Bills that pass both Houses are sent to the president.

• President can either sign the bill or veto it.

• If the President signs the bill, it becomes law.

• In the case of a veto, the bill is sent back to the Congress.

• If both Houses pass it by a Two-Third majority, the bill becomes law over the
president’s veto. This is called Over-riding a veto.

Pocket veto:

There are couple more options available to the president.

• First if he neither signs the bill nor vetoes it, after 10 days, it becomes law
automatically without his signature.

• The second option is called pocket veto. It occurs when the Congress sends the
bill to the President and they then adjourn. If the President does not sign the bill
within 10 days, it does not become law.
 Separation of Powers and Checks and Balances

Judicial Branch Executive Branch Legislative Branch

Powers of the Judiciary Powers of the Chief Powers of Congress
Executive
• can invalidate, on • is responsible for • passes all federal
grounds of carrying out the laws laws
unconstitutionality, passed by Congress • establishes lower
laws passed by • can approve or veto federal courts and the
Congress acts of Congress number of judges
• can invalidate • can call Congress • can impeach the
executive branch into special session president
orders or actions on • can submit • can override the
grounds of legislation to president’s veto by a
unconstitutionality or Congress two-thirds vote
absence of • nominates Supreme • passes the federal
authorizing Court and federal budget, which
legislation judges finances the
• can pardon people executive branch and
convicted in federal other government
courts institutions
• is responsible for • approves treaties
execution of court • approves presidential
orders appointments,
• makes foreign including those to the
treaties federal courts
• is commander-in-
chief of armed forces
Checks and Balances on Checks and Balances on Checks and Balances on
Judicial Powers Executive Powers Congressional Powers
• Congress can • Congress can • Both houses of
• change the number • reject legislation Congress must vote
and jurisdiction the president to enact a law,
(authority to hear wants thereby checking
cases) of the • override vetoes of power within the
federal courts legislation by a legislature
• impeach and two-thirds vote • President can veto
remove federal • impeach and legislation
judges remove president • Supreme Court can
 • propose (with chief justice rule federal and state
constitutional of Supreme Court laws unconstitutional
amendments to presiding)
override Supreme • declare war
Court decisions • Senate can refuse to
• President appoints confirm nominees or
federal judges (who ratify treaties
must be confirmed by • Supreme Court can
the Senate) declare presidential
acts unconstitutional