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September 2014 Policy Study, Number 14-4


A Citizens Introduction to Federalism: Federalism and the Future of Constitutional Government


Part II: The Structures of the Constitution:

Rule of Law, Separation of Powers, and Checks and Balances



The principle of checks and balances also applies because each branch of government can counter the other branches. Article 1 of the Constitution lists the powers of Congress and under these specific powers the Congress can hold the executive and judicial branches accountable. For example, the Congress can override a President’s legislative veto, impeach the President, provide oversight on the executive branch and the federal courts, and declare war. The President can veto legislation, serve as Commander-in-Chief, and makes sure the laws are faithfully executed, while the Supreme Court can strike down laws that are unconstitutional and the Chief Justice presides over the impeachment trial of the President in the Senate. Interestingly, Article III brings up much debate because the concept of judicial review is not specifically stated in the Constitution, but rather that power was utilized by Chief Justice John Marshall in the historic case of Marbury v. Madison.


James McClellan stated that “the check and balance system is probably the most ingenious and carefully crafted feature of the American Constitution.”[48] Some of the reasons why the Framers designed checks and balances include:


    • They arranged that there should be some overlap of functions among the three major departments of government;
    • They improved upon the state constitutions by arranging that the members of the three branches of government should be chosen in three different ways — so making the executive and judicial branches more independent from the legislative;
    • The Framers provided each department with constitutional means for resisting attempts at domination by the other departments;
    • It may thus be seen that an elaborate system of checks and balances was woven into the Constitution. These checks and balances were intended to prevent any person or organ of government from interfering with constitutional freedoms or with the lawful functioning of another organ of government. They also help to maintain the separation of powers by arming each branch with a defensive power to resist encroachments from another branch.[49]

Some of the specific checks and balances provided for in the Constitution include:

Checks upon the Congress:

  • The Vice President (executive branch) presides over the Senate and can cast a tie-breaking vote (Article I, Section 3).
  • The President is empowered to call special sessions of the Congress, and to adjourn both houses if they cannot agree upon a time for adjournment (Article II, Section 3).
  • The President is given power to veto acts passed by the Congress (Article I, Section 7).
  • The Supreme Court has power to review enactments of the Congress for unconstitutionality (an unspecified power derived from Article III).

Checks upon the President:

  • Congress has power to impeach and remove the President for high crimes and misdemeanors (Article II, Section 4).
  • Congress may override a presidential veto by a two-thirds majority (Article I, Section 7).
  • Congress can assure civilian control of the military through its power to appropriate — or withhold — funds to support military and naval forces, to make regulations for those forces, to call forth the militia of the states, to suppress insurrections and to repel invasions, and to declare war (Article I, Section 8).
  • Congress has an inherent power to investigate actions of the executive branch concerning proper execution of the laws and proper expenditure of funds (Article I, Section 8).
  • Congress is empowered to appropriate [or withhold] the funds for operation of the executive branch (Article I, Section 8).
  • The Senate has power to approve, amend, or reject treaties. It may also attach reservations to the treaty, which may not alter the content but may qualify or limit the obligations assumed by the United States under the agreement (Article II, Section 2).
  • The Senate has power to confirm or reject Presidential appointments to major posts [this includes cabinet officials, federal judges, and Supreme Court Justices] (Article II, Section 2).
  • The Judiciary has power to review actions of the executive branch for their constitutionality (an unspecified power derived from Article III).

Checks upon the Judiciary:

  • Congress has power to impeach and remove federal judges for adequate cause (Article I, Section 3; Article II, Section 4; Article III, Section 1).
  • Congress has power to appropriate [or withhold] funds for operation of the judicial branch (Article I, Section 8).
  • Congress has power to determine the number of judges and the size of federal courts (Article III, Section 1).
  • Congress has power to regulate the original jurisdiction of inferior federal courts and the appellate jurisdiction of all federal courts (Article III, Sections 1 and 22).
  • The President has power to appoint federal judges (Article II, Section 2).[50]

Matthew Spalding argues that “separation of powers, along with the further provisions for checks and balances, creates a dynamism within the workings of government that uses the interests and incentives of those in government to enforce constitutional limits beyond mere statement.”[51]  As Spalding further describes:


The Constitution creates three branches of government, and each is vested with independent powers and responsibilities. Each also has its own basis of authority and serves different terms of office. No member of one branch can at the same time serve in another branch. But their powers aren’t separated completely: In order to protect themselves and guard against encroachment, each department shares overlapping powers with the others.[52]


These overlapping powers work together to fight the “ambitions” of each branch. “In other words, government is structured so that each branch has an interest in keeping an eye on the others, checking powers while jealously protecting its own,” wrote Spalding.[53]


The principles of separation of powers and checks and balances are a major part of the genius of the American Founding Fathers. These principles are essential for constitutional limited government. James McClellan argued that “of all the theories of government that have been propounded to establish limited government, the doctrine of separation of powers has been the most influential and successful.”[54] McClellan further argues that both separation of powers and checks and balances are “a necessary prerequisite to limited constitutional government because a concentration of political power is inherently dangerous and will sooner or later lead to the abuse of power and to oppressive government.”[55]


While it is true that separation of powers and checks and balances are still a fundamental part of American government, our political and constitutional history is filled with examples of all three branches of government acting outside their respective constitutional boundaries. Some examples include the radical Republicans in Congress in the aftermath of the Civil War, who tried to dominate the executive branch over Reconstruction policy, and this led to the constitutional crisis over the impeachment of President Andrew Johnson; President Franklin D. Roosevelt, who utilized broad executive power during the Great Depression and World War II; and the liberal activist Supreme Court under Chief Justice Earl Warren that utilized judicial activism to pursue societal changes. Many examples exist in our history of the three branches competing against each other for political power. Perhaps the most significant is the increasing power of the President and the executive branch at the expense of the legislative branch.  




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