But knowing equally well that an absolute separation would only impair the effective function of the government, they also rejected a total separation of powers.

The result was a "government of separated institutions sharing powers"，whose structure incorporated the concept of checks and balances.1 Within this structure, the departments are formally separated and each was assigned certain core (unctions, but their functions are also mingled and blended. The separate governmental departments are independent from one another, yet they exercise a mutual control function in order to prevent a misuse of power.

As Justice Brandeis said, dissenting in Myers v. United States (1926)

“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 reasons of the inevitable friction incident to the distribution of the governmental powers among three departments« to save the people from autocracy.

Thus, under this scheme of government, the president appoints officials and makes treaties, but only with the consent of the Senate. He may veto legislation» but the congress can override the veto. The president may, as commander-in-chief, dispatch troops abroad, but only the Congress can declare war and authorize the necessary finances. The president appoints judges, with the approval of the Senate, but the laws made by the Congress and signed by the president are subject to judicial review.

The doctrine of judicial review plays an important role in the whole scheme of checks and balances. Judicial review does not rest on any express provision of the Constitution but derives from its basic philosophic values and from constitutional traditions.4 It was established by the Supreme Court decision in Marbury v. Madison (1803). In that case the Supreme Court decided that judicial control was not limited to the review of state law for its constitutionality. It extended to examination and review of federal laws as well. This basic decision gives effect to the principle of separation of powers，making it an actionable claim for the enforcement and observance of "the rule of law"

Judicial control over the president (in contrast to inferior branches of the executive departments) logically derives from the same Constitutional tradition. But it was not until 1952 that the courts had an opportunity to exercise that control. In Youngstown Sheet & Tube v. Sawyer, the Supreme Court declared emergency measures of President Truman to be an unconstitutional exercise of legislative power. The issue of judicial control over the president arose anew in 1973 and 1974 in the famous controversy over Nixon’s involvement in the Watergate scandal.8 When Nixon refused to obey, on ground of executive privilege, an order of a federal judge to produce certain tapes，the Supreme Court affirmed the order of the district court. In doing so, it reaffirmed that it was “the duty” of the Supreme Court “to say what the law is” with respect to the claimed privilege. The significance of this decision 9 United States v. Nixon 9 is similar to Marbury v. Madison. It concludes the system of judicial control and assures the observance of the rule of law and, with it« of separation of powers in the governmental structure.

Answer the following questions :
1. For what purposes did the framers of the Constitution separate the powers among the government institutions?
2. What does "separation of powers" mean?
3. Why did the framers reject the idea of a total separation of powers?
4. Give examples to show presidential control over Congress.
5. Give examples to show congressional control over presidential decisions.
6. How does the judicial branch exercise its control over the legislature and the executive?
7. Give examples to show that the President and the Congress share powers.
8. What is the significance of Marbury v, Madison?
9. In Marbury v. Madison t Chief Justice John Marshall says it is the duty of the court to say what the law is. Explain and comment on this statement.
10. What is the Supreme Court’s decision in Youngstown v. Sawyer?
11. What is the Supreme Court’s decision in United States v. Nixon?
12. In what sense does judicial review assure the rule of law?

My view was that every executive officer, and above all every executive officer in high position • was a steward of the people bound actively to do all he could for the people. I declined to adopt the view that what was imperatively necessary for the nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the nation demanded, unless such action was forlndden, by the Constitution or by the laws. Under this interpretation of executive power 1 did many things not previously done by the President and the heads of the departments. I did not usurp power, but 1 did greatly broaden the use of executive power. In other words, I acted for the common well-being of all our people， whenever and in whatever manner was necessary，unless prevented by direct constitutional or legislative prohibition. (President Theodore Roosevelt on presidential power)