The Separation of Powers

The Story:

Last week the U.S. Supreme Court addressed the issues of how stringent is the separation of powers mandated by the United States Constitution, and of whether the U.S. Congress had violated that mandate by passing a statute that, in effect, forces the result in a pending case.


The term “separation of powers” refers to the distinct responsibilities of each of the three branches of government in many systems, including that of the United States. The branches are: executive, legislative, judicial.

It is settled, for example, that if the legislature should pass a statute saying that “In the pending case of Smith v. Jones, Smith wins,” the statute would be unconstitutional as an infringement on the judicial power.

In Patchak v. Zinke, the Court reviewed a law in which Congress said that no action shall be “filed or maintained in federal court” including an action “pending in a Federal court as iof the date of enactment of this Act” that shall challenge the transfer of a particular parcel of land, desired by a particular tribe for a casino.

Many people, including three dissenting Justices, believe that in Patchak v. Zinke the court approved a statute that came uncomfortably close to usurpring a specific judicial determination.

The Thing to Know:

All members of Congress are elected. All federal judges are appointed, for life with good behavior. The case for separating powers strictly is the case for a counter-majoritarian principle, for respecting the independence of judges precisely because they are insulated in a degree from the ebbs and flows of public opinion.

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