“The powers of government should be so divided
and balanced among several bodies of magistracy, as that no one could transcend
their legal limits, without being effectually checked and restrained by the
others.” Thomas Jefferson
To a degree, each branch of the national
government operates in slight fear that another branch will chastise or even
overrule its actions. This was an intended consequence of the design. Madison
wrote in Federalist 51, “the great security against a gradual concentration of
the several powers in the same department consists in giving to those who
administer each department the necessary constitutional means and personal
motives to resist encroachments of the others. The provision for defense must
in this, as in all other cases, be made commensurate to the danger of attack.
Ambition must be made to counteract ambition.”
In Madison’s opinion, liberty can only be
protected by power restraining power. The Constitution doesn’t contain any
language preserving the boundaries of the three branches. It is up to the three
branches to defend their independence with their assigned powers.
Let’s take a look at the checks between the three
branches, starting with Congress.
Congressional Checks
The legislative branch’s checks on the executive
include the power of the purse; Senate approval of appointments, treaties, and
ambassadors; impeachment power; authority to declare of war; a veto override
provision; approval of appointment to fill a vice presidential vacancy, and the
president must deliver to Congress a State of the Union address. Although not
quite as obvious of a check, Congress can also refuse to pass a bill the
president wants.
The legislative branch’s checks on the judiciary
include Senate approval of Federal judges; impeachment power; authority to set
the size of Supreme Court; and power to establish courts inferior to Supreme
Court and set their jurisdictions. If the Supreme Court declares a law
unconstitutional, the legislature has the power to initiate a constitutional
amendment.
Since Congress is bicameral, it is also
self-checking because bills must pass both houses. Additionally, the House of
Representatives must initiate revenue bills, neither house can adjourn for more
than three days without the consent of the other house, and journals of both
houses must be published.
Executive Checks
The executive’s checks on the legislature include
veto power; recess appointments; the vice president is president of the Senate;
the president can call emergency sessions; or even force adjournment when both
houses cannot agree on an adjournment date. The president is also commander in
chief to balance the legislature’s power to declare war.
The executive’s checks on the judiciary include
power to appoint judges and the authority to pardon.
Additionally, the authority of the vice president
and cabinet to vote that the president is unable to discharge his or her duties
is an executive self-check.
Judicial Checks
The judicial check on the legislature is judicial
review. On the defensive side, judges are assured independence because their
compensation is protected, and they hold their seats through good behavior.
The judicial check on the executive is judicial
review. The chief justice also sits as president of the Senate during
presidential impeachment.
States as a Check on the National Government
The Founders did not restrict the checks and
balances concept to the three Federal branches. The delegates to the
Constitutional Convention intended the states to be a potent check on the
national government. They included five
provisions for this purpose:
1.
Enumerated powers, reconfirmed by the 10th
amendment
2.
Equal state representation in the Senate
3.
Senators elected by state legislatures
4.
Limited national taxing authority
5.
An Electoral College
Unfortunately, few in Washington consider the
enumerated powers a constraint; Senators are now popularly elected; the 16th
Amendment allows Congress to collect taxes on incomes, from whatever source derived, and the Electoral College is
under attack.
Money is power and some are interpreting the 16th
Amendment’s open-ended taxing authority as an overt expansion of national
powers. For example, this argument has been used by the executive branch to defend
Obamacare as Constitutional.
Other Checks on the National Government
The separation of church and state is really
another separation of power because it denies rulers the claim of divine right.
By the late eighteenth century, a free press was generally seen as a check on
all governments, local and national. The Founders intended the ultimate check
on the national government to be the people. John
Adams wrote, “There is a simple sense in which at every election the electorate
hold their representatives to account, and replace those who have failed to
give satisfaction. This fundamental check is, we might say, the essence of the
liberty to be found in representative government.”
Bursting Free of Restraint
The Founders harnessed their new government with
Lilliputian ropes that would hold it in place so it didn’t trample the little
people. Like Gulliver, our behemoth national government has shrugged off one
constraint after another until there are no practical limits to its power. All
three branches regularly overstep their boundaries as if each were given
unchecked authority. The states are currently struggling to reassert their
rightful place in a federal system. The general welfare, commerce, and
necessary and proper clauses have all been used to circumvent enumerated
powers. As a result, the national government has few acknowledged constraints
except for the ballot box.
The ballot box is still a potent check on runaway
power. As Alexander Hamilton said in Federalist 21, “The natural cure for an
ill-administration, in a popular or representative constitution, is a change of
men.”
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