Separation of Powers - Checks & Balances
How One Branch of Government Checks the Power of Others
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What is the Separation of Powers?
The Constitution divides the US Government into the following three separate-but-equal branches.
- Legislative Branch (Article I) House of Representatives and Senate (collectively, Congress)
- Executive Branch (Article II) President
- Judicial Branch (Article III) US Supreme Court
What are Checks and Balances?
The government is structured as a checks-and-balance system whereby each branch independently checks the authority of the other branches.
This system prevents any branch from becoming too powerful and eroding the rights of citizens.
Below is a brief description of how each branch checks the authority of the other branches.
What is the Power of the Executive Branch to check the Power of other Branches?
The executive branch is controlled by the President of the United States.
- Veto legislation
- Selectively carry out laws
- Appoint Judges
- Pardoning Power
This branch checks Congress's authority through the power to veto (strike down) legislation.
When Congress presents the President with an approved bill to sign into law, the President can sign it, not sign it, or veto it.
Signing it or failing to sign it will result in the bill becoming law. Vetoing the law strikes it down.
Congress can only override a veto with a two-thirds (2/3) majority vote of both the House and Senate.
The President, in turn, may selectively enforce laws that are within the executive branch's regulatory authority.
Selective enforcement has the effect of reducing the impact of a law passed by the legislative branch.
Lastly, the executive branch checks the judicial branch by nominating members to the federal judiciary and through the power to pardon those convicted under certain criminal statutes.
What is the Power of the Judicial Branch to check the Power of other Branches?
The judicial branch checks the legislative branch in the following ways:
- Review legislation for Constitutionality
- Review Executive Action for Constitutionality
- Interpret legislation as it applies to specific contexts.
The first major check is by reviewing laws for constitutionality.
Any law is subject to challenge on the grounds that it violates rights ensured under the US Constitution.
The judicial branch also checks all executive orders or actions for constitutionality.
In either case, it has the ability to overturn unconstitutional laws and executive orders or actions.
Further, the court can limit the scope of a law by narrowly or broadly interpreting it in a manner that does not infringe upon constitutional rights.
What is the Power of the Legislative Branch to check the Power of other Branches?
The legislative branch of government passes laws that guide the executive branch in the execution of the law. Congress must approve the executive branch's budget and certain presidential appointments to high-level administrative positions. The US House of Representatives retains the authority to impeach (bring charges against) the President for misconduct committed while in office. Further, the US Senate has the authority to determine the merits of the impeachment and render judgment. Congress checks the power of the judiciary by passing laws that supersede or replace the existing common law developed by the judiciary. Lastly, Congress must approve the Presidents nomination of an individual for appointment to federal judicial positions, including the US Supreme Court.
Discussion: How many bills last year did Congress present to the President to sign into law? How many times did the President exercise his veto authority? Can you provide an example of a federal law that was overturned by the US Supreme Court? An executive action overturned by the US Supreme Court? Can you think of an example of a law that was narrowly or broadly interpreted to either limit or expand the breadth of the law?
- The research findings revealed that twenty-one bills were passed by Congress and presented to the president in 2018. For instance, in January 2018, 5 bills were passed, February 3 bills, March 3 bills. Donald Trump has exercise veto power once since he assumes office. Barack Obama exercised his veto powers 12th times and George W Bush 12. Since Marbury decision in 1803 until 2002, the Supreme Court has found federal laws unconstitutional 158 times. Two years ago, the court invalidated a federal law that criminalized the commercial creation, possession, and sales of films or video depicting animal cruelty in United States v. Stevens. The case of Atkins v. Virginia 536 V.S. 304(2002) a case in which the supreme court of the united states ruled 6-3 that executing people with intellectual disabilities violates eight Amendments ban on cruel and unusual punishment. The US supreme court has used the overbreadth doctrine many times to invalidate broad laws. In Gooding V. Wilson(1972), the court reversed a draft protesters breach-of- the-peace conviction because of the breadth of the (Georgia code S 26-6303) that prohibit individuals from uttering " abusive language " The defendant contended that the law was overbroad, while the state countered that the law only applied to unprotected fighting words.
Practice Question: Congress passes a bill in the House and Senate and sends it to the office of the President for signature. What happens if the President does not want to sign the bill into law? By what method can the bill still become law? What if the President signs the bill into law but refuses to enforce the law in accordance with its terms? Is there any method or remedy for challenging the President's failure to enforce the law in accordance with its provisions? What happens if the President signs the bill into law, but the law seems to burden or infringe upon the Constitutional rights of a group of US citizens? What methods and authority exist for challenging the validity of the law?
- If the president does not want to sign the bill and ten days passes (not including Sundays) the bill becomes law without the President's signature. However, if Congress has adjourned before the ten days passes and without the President's signature, the bill fails. This is referred to as a pocket veto. The bill will still become law if the president either signed or not. The law starts that if the bill shall not be returned by the president within ten days (excluding Sunday) after it shall have been presented to him the same shall be a law in like manner as if he had signed it. The bill also becomes law if Congress can override a President's veto with a two-thirds majority of both the House and Senate. The United States judicial law approves the President's decision on refusing to enforce the law. Freytag v. commissioner, 501 v.s.868 (1991), all four of the justices who addressed the issue agreed that the president has the power to Veto encroaching laws or even disregard to enforce the law on the signed bill when he feels the law is unconstitutional. Signed law by the president is subject to scrutiny by the judiciary (Supreme Court) on its constitutionality. The judiciary can either limit the scope of the law or narrow it in a manner that does not infringe upon constitutional rights.
Academic Research on Checks and Balances
- Magill, M. Elizabeth, Beyond Powers and Branches in Separation of Powers Law. University of Pennsylvania Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=292004 or http://dx.doi.org/10.2139/ssrn.292004. This article provides a critique of the common view toward the separation of powers theory and doctrine.
- Jacobs, Sharon, The Statutory Separation of Powers (July 14, 2018). U of Colorado Law Legal Studies Research Paper No. 18-28; Yale Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3229255 or http://dx.doi.org/10.2139/ssrn.3229255. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies.
- Manning, John F., Separation of Powers as Ordinary Interpretation (June 1, 2011). Harvard Law Review, Vol. 124, p. 1939, 2011. Available at SSRN: https://ssrn.com/abstract=2849600. This article reviews the separation of powers under a functionalist and formalist framework.
- Price, Zachary, Funding Restrictions and Separation of Powers (March 14, 2018). Vanderbilt Law Review, Vol. 71, 2018, p. 357. Available at SSRN: https://ssrn.com/abstract=2983453. This article reviews the power of the purse as a core element of the separation of powers.