Charles Kutt

PO 04104
2/18/2011
The Branches
During the late eighteenth century the thirteen newly independent states of the North
American continent faced escalating difficulties. The standing Articles of Confederation failed to
provide the fledgling nation enough centralized political power to manage these new issues. Still
fearful of an imposing and even tyrannical government, reminiscent of Imperial Britain,
concerned citizensknown as anti-federalistsopposed a new and stronger administration.
However the torrent of problems afflicting the States was too great to ignore. Leading statesmen
and citizens of many States called an assembly of revision and reconstruction. These men created
the Constitution of the United States. This Constitutional Convention consolidated and increased
federal power while also leaving the States certain rights. The Founders granted this centralized
power to three main branches: a Congress, an Executive, and a judicial Supreme Court. James
Madison advocated in Federalist 51 this separation of powers to allow each branch to maintain a
series of checks and balances upon one another. This novel tri-sovereign federal administration
constantly evolved throughout American history with a subtle yet definite trend. Madisons
separation of powers in the Constitution of the United States created a formidable federal
establishment that shifted periodicallyyet routinelytowards Executive preeminence.
Though the Articles of Confederation encouraged individuals to think of government as
their own with an emphasis on decentralization, a lack of affirmative power plagued the nation.
Individual States, once quick to aid Continental Congress during the Revolution, failed to
support the Confederacy financially and militarily. From 1781 to 1786 [] Congress requested
15 million dollars to carry out foreign and domestic responsibilities but received only 2.5

million (Landy 65). The Confederacys inability to procure more funds was compounded by
rival state commerce. Competing States destroyed the Confederations economy through reckless
tariffs. States, under local pressure from debtors, drastically increased the money supply
furthering the economic plight. Foreign affairs were no better. The British colony in Canada
threatened the independent States border while the Spanish closed the Mississippi River to
American navigation in 1784 (Landy 65). A government with powers the Confederation lacked
was needed to resolve these issues.
The Constitutional Convention produced a new government, one stronger and more able
to unite the States. The Framers of the Constitution, wary of a tyrannical and abusive
government, decided to grant federal power to three branches of authority. James Madison
advocated this separation of powers to suppress qualms of an imposing central authority.
Madison argued in Federalist 51 that a tri-sovereignty should promote deliberation and justice
through the equal power each branch held. Since each department should have a will of its
own, an abusive branch is held accountable for its actions and prevented from abusing the
American people (Landy 754). Madison counted on a fundamental trait of man to ensure a just
government. Ambition must be made to counteract ambition (Landy 755). The aspirations and
grand objectives of the branches individual officials would theoretically keep the entire system
in line. These checks and balances derive from the branches Constitutional powers presented in
Articles I, II, and III (while state powers later refined in Amendments X and XIV).
Article III, Sections 1 and 2 of the Constitution establishes the Judicial Branch and
formulates the privileges of the Supreme Court. The judicial Power shall extend to all Cases, in
Law and Equity, arising under this constitution, the Laws of the United Sates, and Treaties made
[] to Controversies to which the United Sates shall be Party; -to Controversies between two or

more states (Art. III, 1, cl. 1). Though judicial power is granted in the constitution, John
Marshall established a real precedence of Constitutional interpretation in the case Marbury v.
Madison (Landy 448). Though this power remains valid and active, the judicial power in the
United States government seems to mediate the reoccurring fray between Congress and the
Presidency more often than joining it.
Article II of the Constitution establishes the bicameral Legislative Branch. All
legislative Powers herein granted shall be vested in a Congress of the United States, which shall
consist of a Senate and House of Representatives (Art. I, 1, cl. 1). The following sections in
Article I enumerate or distinctly spell out and define the exact rights and powers of
Congressional authority. Because of this specificity, Congress, especially the House of
Representatives, reigned supreme in the early days of the United States. Article I of the
Constitution established Congress as the preeminent branch [] granting it seventeen legislative
powers: [] taxation, regulation of commerce, and declaration of war (Landy 309). Shrewd
politicians such as Kentuckian Henry Clay expanded the number of committees through his role
as speaker of the House, in order to enable each representative to specialize in a specific policy
area (Landy 318). However the emergence of stronger presidents clashed with the primary
notion of Congressional superiority.
Article II of the Constitution begins, The executive Power shall be vested in a President
of the United States of America (Art. II, 1, cl. 1). The use of shall be and the exclusion of
herein granted by the Constitutional Framers (explicitly written in Article I) provide the
Executive Branch with rather undefined plenary powers in addition to those defined by the
Constitution. This inlet for increased presidential power birthed prerogative power, the right to
act where the Constitution is silent or where violating its letter is necessary to ensure its survival

(Landy 381). Use of prerogative power began with the nations first president: the stout yet
unassuming presidency of George Washington. His 1793 Neutrality Proclamation with former
American Revolution ally France had no enumerated Constitutional authority. The Executive
Branch began its historical expansion of its federal powers from the very beginning.
This trend continued even with the presiding presidency of Thomas Jefferson, though
not through direct executive clout. Rather, Jefferson relied on his well-organized supporters to
formulate the first working political party. Through his party system of compromising control,
Jefferson disciplined his followers by appealing to their [Democratic-Republican] party spirit
but also by manipulating the supply of patronage (Landy 384). Patronageknown best by the
terminology of President Andrew Jacksons spoils systemis the replacement of incumbent
federal officials with party loyalists (Landy 384). Though maintaining control through means
other than executive expansion, the third President of the United States still possessed a clever
means for his administrative agenda.
Many iconic presidential administrations such as the Lincoln, Jackson, and Washington
presidencies understood their authority to be open in times of national crisis (Landy 390).
However, Presidents Teddy and Franklin D. Roosevelt expanded the powers of the Executive
Branch for the sake of day-to-day administration of government (Landy 390). Through TRs
idea of the Bully Pulpit and FDRs New Deal brought about executive expansion on entirely
new levels: directly to the peopleover the heads of Congressand directly for the people with
economic and social fail-safes. Even in the 21st century, President George W. Bush utilized
signing statements during his first five years as president to declare that he would not enforce
more than 500 provisions of more than 100 laws. In each case, his purpose was to insulate

executive power from congressional and judicial oversight (Landy 419). The power of the
president inexorably expands.
The wording of the United States Constitution allowed the Executive Branch to
systematically augment its powers beyond the written privileges. Though Madisons system of
checks and balancesin accordance with the separation of each branchs powersdid divide
sovereignty, it did so rather unequally at the beginning through the loop hole in Article II. The
ability to achieve power beyond the Constitution may only be reigned in and contained by the
Judicial and Legislative Branches; never suppressed entirely unless restrained by the Executive
himself. Each president, each Congress, and each Supreme Court pressed and defended their
powers differently while evolving the answer to the inept Articles of Confederation: The United
States Constitution.