🫡State and Federal Constitutions Unit 6 – Separation of Powers: Checks & Balances

Key Concepts

• Separation of powers divides government authority into distinct branches to limit any one branch from exercising the core functions of another
• Checks and balances system provides each branch with powers to check the other branches and prevent any one branch from becoming too powerful
  • Examples include the president's veto power, Congress' power to override a veto, and the Supreme Court's power to declare laws unconstitutional
• Rule of law is the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced
• Federalism divides power between the federal government and state governments, with each having their own spheres of authority
• Judicial review is the power of the courts to examine the actions of the legislative and executive branches and invalidate those actions if they violate the Constitution
• Impeachment is the process by which Congress can remove a government official, including the president, from office for committing serious offenses
• Advice and consent is the power of the Senate to approve or reject presidential appointments and treaties

Historical Background

• The concept of separation of powers has its roots in ancient Greece and Rome, where philosophers like Aristotle and Polybius discussed the importance of mixed government
• In 17th century England, political theorists like John Locke argued for the separation of legislative and executive powers to prevent tyranny
• Baron de Montesquieu, a French Enlightenment thinker, articulated the theory of separation of powers in his 1748 work "The Spirit of the Laws"
  • He argued for a division of political power among a legislature, an executive, and a judiciary
• The American Founders, influenced by these ideas, sought to create a system of checks and balances in the U.S. Constitution
  • James Madison, in Federalist No. 51, explained the need for checks and balances to maintain the separation of powers
• The U.S. Constitution, ratified in 1788, established three branches of government with distinct roles and powers
• Over time, the precise boundaries of each branch's powers have been shaped by political practice, legislation, and judicial interpretation

Constitutional Framework

• Article I of the Constitution establishes the legislative branch, consisting of the Senate and the House of Representatives
  • Congress has the power to make laws, declare war, levy taxes, and regulate commerce, among other powers
• Article II establishes the executive branch, headed by the president
  • The president has the power to enforce laws, command the military, make treaties, and appoint federal officials
• Article III establishes the judicial branch, consisting of the Supreme Court and lower federal courts
  • The courts have the power to interpret laws and determine their constitutionality
• The Constitution also includes provisions for checks and balances among the branches
  • For example, the president can veto legislation, but Congress can override a veto with a two-thirds majority in both houses
• The Bill of Rights, added to the Constitution in 1791, includes additional protections against government overreach and abuse of power
• Amendments to the Constitution have further shaped the balance of powers, such as the 22nd Amendment limiting presidents to two terms

Three Branches of Government

• The legislative branch, made up of the Senate and House of Representatives, is responsible for creating laws
  • Senators are elected to six-year terms, with two senators representing each state
  • Representatives are elected to two-year terms, with the number of representatives per state determined by population
• The executive branch, headed by the president, is responsible for enforcing laws and conducting foreign policy
  • The president is elected to a four-year term and can serve a maximum of two terms
  • The vice president, also part of the executive branch, is first in the line of succession to the presidency
• The judicial branch, consisting of the Supreme Court and lower federal courts, is responsible for interpreting laws and determining their constitutionality
  • Supreme Court justices are appointed by the president and confirmed by the Senate, and they serve lifetime appointments
  • Federal judges are also appointed by the president and confirmed by the Senate, but they serve fixed terms
• Each branch has its own distinct powers and responsibilities, but they also interact through the system of checks and balances
  • For example, the president nominates Supreme Court justices, but the Senate must confirm them

Checks and Balances in Action

• The legislative branch checks the executive through its power to override presidential vetoes, impeach and remove the president, and control the budget
  • Congress can also investigate executive actions and refuse to confirm presidential appointees
• The executive branch checks the legislative through the president's veto power and the ability to call special sessions of Congress
  • The president can also influence legislation through the bully pulpit and executive orders
• The judicial branch checks both the legislative and executive through its power of judicial review
  • The Supreme Court can declare laws and executive actions unconstitutional
• The legislative branch checks the judiciary through its power to confirm or reject judicial nominees and its ability to impeach and remove federal judges
  • Congress can also pass legislation to modify the jurisdiction of federal courts
• The executive branch checks the judiciary through the president's power to nominate federal judges
  • The Department of Justice, part of the executive branch, also argues cases before the Supreme Court
• The system of checks and balances ensures that no single branch becomes too powerful and that the branches work together in governance

Controversies and Debates

• The proper scope of each branch's powers has been the subject of ongoing debate and interpretation
  • For example, the extent of the president's war powers and the limits of executive privilege have been contested
• The role of the federal government relative to the states has also been a source of controversy, with debates over issues like states' rights and federal mandates
• The power of judicial review, established in Marbury v. Madison (1803), has been both praised as a check on the other branches and criticized as judicial activism
  • Controversial Supreme Court decisions, such as Roe v. Wade (1973) on abortion rights and Citizens United v. FEC (2010) on campaign finance, have sparked debates over the proper role of the judiciary
• The use of executive orders and signing statements by presidents has been criticized as an overreach of executive power
  • However, defenders argue that these tools are necessary for the president to fulfill their constitutional duties
• The filibuster, a Senate procedure allowing a minority to block legislation, has been criticized as obstructionist and counter to majority rule
  • Supporters argue that the filibuster encourages compromise and protects minority rights
• Debates over the proper balance of powers among the branches often reflect broader political and ideological divisions in American society

Modern Challenges

• The growth of the administrative state and the rise of executive agencies have blurred the lines between the branches and raised questions about accountability
  • Some argue that Congress has delegated too much power to unelected bureaucrats, while others contend that agencies are necessary to address complex modern issues
• The increasing polarization of American politics has made compromise and cooperation among the branches more difficult
  • Divided government, where one party controls the presidency and the other controls one or both houses of Congress, has become more common
• The role of money in politics, including the impact of lobbying and campaign contributions, has raised concerns about undue influence on all three branches
• The media and the 24-hour news cycle have changed the way the branches communicate and interact with the public
  • Social media has allowed politicians to bypass traditional media and directly reach constituents, but it has also contributed to the spread of misinformation
• Globalization and the rise of transnational issues, such as climate change and terrorism, have challenged traditional notions of national sovereignty and the separation of powers
  • International agreements and institutions, such as the United Nations and the World Trade Organization, have raised questions about the balance of power between the branches in foreign policy
• Technological advancements, such as the increasing use of drone warfare and surveillance, have raised new questions about the limits of executive power and the role of Congress and the courts in providing oversight

Real-World Examples

• In 1952, President Harry Truman seized control of steel mills to prevent a strike during the Korean War, but the Supreme Court ruled in Youngstown Sheet & Tube Co. v. Sawyer that he had exceeded his authority
  • This case established important limits on presidential power and affirmed the role of the courts in checking the executive
• In 1974, Congress passed the War Powers Resolution over President Richard Nixon's veto, requiring the president to consult with and report to Congress on the use of military force
  • This law, while contested by some presidents, seeks to reassert Congress' role in war-making and foreign policy
• In 1998, the House of Representatives impeached President Bill Clinton for perjury and obstruction of justice related to the Monica Lewinsky scandal, but the Senate acquitted him
  • This episode demonstrated the power of impeachment as a check on the president, even if removal from office is rare
• In 2000, the Supreme Court's decision in Bush v. Gore effectively decided the presidential election by halting a recount in Florida, demonstrating the significant power of the judiciary in political disputes
• In 2011, Congress and President Barack Obama engaged in a prolonged standoff over raising the debt ceiling, with Republicans in Congress using the threat of default to extract spending concessions
  • This showdown highlighted the power of Congress over the budget and the potential for brinksmanship in divided government
• In 2017, President Donald Trump issued an executive order banning travel from several predominantly Muslim countries, but federal courts blocked its implementation, leading to a Supreme Court case and a modified version of the ban
  • This sequence of events showcased the complex interplay of executive action, judicial review, and congressional oversight in the modern era