Constitutional Law I Unit 11 ReviewChecks and Balances: Government Branches

Key Concepts and Definitions

• Separation of powers divides the federal government into three distinct branches (legislative, executive, and judicial) with separate and independent powers
• Checks and balances system where each branch can check the powers of the other branches to prevent any one branch from becoming too powerful
• Legislative branch consists of the House of Representatives and the Senate which together form the United States Congress
• Executive branch headed by the President who is responsible for implementing and enforcing the laws written by Congress
• Judicial branch comprised of the Supreme Court and other federal courts interprets the law and applies it to specific cases
• Federalism division of power between the federal government and the states, with each having its own areas of authority
• Supremacy Clause Article VI, Paragraph 2 of the Constitution establishes that the federal constitution, and federal law generally, take precedence over state laws and state constitutions

Historical Background

• Founding Fathers sought to create a government that would prevent tyranny and protect individual liberties
• Influenced by Enlightenment thinkers such as Montesquieu who advocated for separation of powers
• Articles of Confederation (1781-1789) created a weak central government with most power residing with the states
  • Lack of executive branch and national court system
  • Congress had limited power to regulate trade, levy taxes, and raise an army
• Constitutional Convention of 1787 convened to address the shortcomings of the Articles of Confederation
  • Delegates debated the structure and powers of the new government
  • Compromises reached to balance the interests of large and small states (Great Compromise) and northern and southern states (Three-Fifths Compromise)
• Ratification of the Constitution in 1788 established the current system of government with three branches and checks and balances

Three Branches of Government

• Legislative branch makes the laws
  • Consists of the House of Representatives and the Senate
  • House members elected every two years based on population of each state
  • Senate members elected every six years with two senators per state
• Executive branch enforces the laws
  • Headed by the President who is elected every four years
  • President serves as head of state, head of government, and commander-in-chief of the military
  • Cabinet appointed by the President to assist in running executive departments
• Judicial branch interprets the laws
  • Consists of the Supreme Court and lower federal courts
  • Supreme Court has nine justices appointed by the President and confirmed by the Senate
  • Federal judges serve lifetime appointments to ensure independence from political pressures

Separation of Powers

• Each branch of government has its own distinct powers and responsibilities
• Legislative branch has the power to make laws, declare war, levy taxes, and regulate commerce
• Executive branch has the power to enforce laws, conduct foreign policy, and command the military
• Judicial branch has the power to interpret laws, determine the constitutionality of laws, and resolve disputes between parties
• No branch can exercise the powers of another branch
  • Congress cannot enforce laws or interpret them in specific cases
  • President cannot make laws or rule on their constitutionality
  • Courts cannot make or enforce laws, only interpret them
• Separation of powers prevents any one branch from becoming too powerful and tyrannical

Checks and Balances in Action

• Legislative branch checks the executive through oversight hearings, investigations, and impeachment power
  • Senate must confirm presidential appointments (cabinet members, judges)
  • Congress can override presidential vetoes with a two-thirds majority in both houses
• Executive branch checks the legislative through veto power and the ability to call special sessions of Congress
  • President can nominate judges and appoint officials
  • Executive agencies (EPA, FDA) can issue regulations with the force of law
• Judicial branch checks both the legislative and executive through judicial review
  • Courts can declare laws unconstitutional
  • Courts can rule on the legality of executive actions and orders
• Other examples of checks and balances:
  • President is commander-in-chief of the military, but Congress must declare war and fund the military
  • President can grant pardons, but cannot pardon in cases of impeachment
  • Congress can pass laws, but the President can veto them and the Supreme Court can rule them unconstitutional

Constitutional Provisions

• Article I establishes the legislative branch and enumerates its powers
  • Section 8 lists the specific powers granted to Congress (taxing, borrowing, regulating commerce, etc.)
  • Section 9 lists the limits on Congress's powers (no bills of attainder, no ex post facto laws, etc.)
• Article II establishes the executive branch and outlines the powers and duties of the President
  • Section 1 establishes the electoral college system for electing the President
  • Section 2 lists the President's powers (commander-in-chief, treaty-making, appointing officials)
  • Section 4 allows for the removal of the President through impeachment
• Article III establishes the judicial branch and its powers
  • Section 1 establishes the Supreme Court and allows Congress to create lower courts
  • Section 2 defines the types of cases the federal judiciary can hear (federal questions, diversity jurisdiction, etc.)

Notable Supreme Court Cases

• Marbury v. Madison (1803) established the principle of judicial review, allowing the Supreme Court to declare laws unconstitutional
• McCulloch v. Maryland (1819) affirmed the supremacy of the federal government over the states and established the implied powers of Congress
• Youngstown Sheet & Tube Co. v. Sawyer (1952) limited the President's power to seize private property without congressional authorization
• United States v. Nixon (1974) ruled that the President is not above the law and must comply with subpoenas in criminal investigations
• Morrison v. Olson (1988) upheld the constitutionality of independent counsels appointed to investigate executive branch officials
• Clinton v. City of New York (1998) struck down the line-item veto as an unconstitutional violation of the Presentment Clause
• NLRB v. Noel Canning (2014) limited the President's power to make recess appointments when the Senate is in pro forma sessions

Modern Challenges and Debates

• Expansion of executive power through the use of executive orders, signing statements, and broad interpretations of the President's constitutional powers
• Increased use of the filibuster in the Senate to block legislation and nominations, leading to gridlock and dysfunction
• Politicization of the judicial confirmation process, with partisan battles over Supreme Court and federal court nominees
• Disputes over the scope of congressional oversight and investigation of the executive branch
  • Battles over subpoenas, executive privilege, and immunity of executive officials
  • Impeachment proceedings against Presidents Nixon, Clinton, and Trump
• Concerns about the erosion of checks and balances in an era of heightened partisanship and polarization
  • Presidents bypassing Congress through executive actions
  • Congress delegating more power to executive agencies
  • Courts accused of judicial activism or failing to check the other branches
• Debates over the proper balance between national security and individual liberties in the context of surveillance, detention, and the war on terror