Constitution And Checks And Balances Flashcards
(10 cards)
Introduction
The US Constitution establishes a system of checks and balances to prevent any one branch from becoming too powerful. The executive, legislative and judicial branches each possess mechanisms to constrain others, ensuring accountability, adherence to constitutional principles and the intended separation of powers of the Framers. Historically, the system has functioned effectively, from judicial review restraining the executive overreach to congressional oversight limiting presidential authority. However, in recent years, increasing partisanship, judicial politicisation and executive unilateralism have eroded these safeguards, thus reducing the effectiveness of constitutional checks and balances.
The executive branch held accountable by constitutional checks and balances…
CONGRESS over the EXECUTIVE BRANCH
-it could be argued that the executive branch remains constrained by constitutional checks and balances, ensuring that presidential power does not become excessive.
-a notable check over the executive branch is Congress’s power to investigate the branch through the means of congressional committees and hearings . One way their investigative oversight powers are exemplified is by the formation of the CARES Act Oversight Committee in 2020, with the aim to police the use of the funds- the $2 trillion stimulus bill within the CARES Acr 2020- and to have oversight of the effectiveness of the federal government’s implementation.
-Congress’s investigatory oversight also takes the form of holding hearings of senior members of the executive branch, such as Michael Cohen in 2018, President Trump’s former personal attorney. He was testified before the Home Oversight and Reform Committee, given the various controversies surrounding Trump’s administration, and eventually he claimed that he violated campaign finance laws at Trump’s direction “for the purpose of influencing the 2016 presidential election”, resulting to a 3-year prison sentence.
-both these examples can indicate how Congress, through the use of investigatory powers, are able to effectively check the executive branch by policing and investigating potential avenues of executive overreach
-even, Congress’s impeachment process can be seen as serving as a deterrent against presidential misconduct. The impeachment of Bill Clinton in 1998 and Donald Trump in 2019 and 2021, while not resulting in removal, placed significant political pressure on the presidents, reinforcing the idea that presidential power is not absolute.
-thus, this could outline the maintained potency and effectiveness of constitutional checks and balances over the executive branch.
The executive branch is effectively held to account….
JUDICIARY OVER THE EXECUTIVE BRANCH
-moreover, the supreme court can be seen, with the aid of their “discovered” power of judicial review in Marbury v Madison 1803, as a vital check over the executive branch by being able to declare the executive’s actions as unconstitutional.
-this has been showcased more recently in the case Biden v Nebraska (2023), whereby the court ruled that the secretary of education exceeded statutory authority of the HEROES Act when attempting to cancel $430 billion of student loans.
-Another recent example is Department of Homeland Security v. Regents of the University of California (2020). The Supreme Court blocked the Trump administration’s attempt to end the DACA program, ruling 5–4 that the administration’s action was “arbitrary and capricious” under the Administrative Procedure Act. This decision checked presidential power by requiring executive actions to follow proper legal procedures and justified reasoning.
The executive branch not constrained by checks and balances
CONGRESS
-a more convincing argument is that the executive branch has steadily expanded it authority, weakening the effectiveness of constitutional checks.
-the use of executive orders has increased dramatically, with presidents bypassing Congress to enact significant policies. For example, Obama issued DACA in 2012 through executive action after Congress failed to pass immigration reform, DREAM Act, setting a precedent for unilateral presidential policymaking.
-similarly, Trump implemented a travel ban on predominantly Muslim-majority countries in 2017 through an executive order, which, the ruling Trump v Hawaii (2018), presented a court deferring to Trump’s act, reinforcing the potency of president’s unilateral power derived from executive orders and agreements.
-the War Powers Resolution (1973), intended to limit unilateral military action and fortify Congress’s constitutional role by granting Congress the right to withdraw troops abroad after 60 days if congress had not approved action, has been ignored and circumvented by multiple presidents.
-the president’s implied powers derived from being commander-in-chief has allowed presidents to act unilaterally without seeking a congressional vote and have defended their military acts under the term “short-term actions” which are not covered by the War Powers Act 1973.
-For example, Obama engaged in military intervention in Libya in 2011 without congressional approval, and Trump ordered the drone strike killing Iranian General Qasem Soleimani in 2020 without consulting Congress, indicating how the president, not congress, has been the prime instigator of numerous conflicts in the past years.
-with respects to the Senate’s constitutional role to ratify treaties, in the previous years, presidents have circumnavigated the Senate by signing executive agreements when they know that it will not pass the high threshold of a two-thirds majority in the Senate.
-this is notably exemplified in 2015 when Obama, knowing that a treaty will not be passed by the Senate, signed an executive agreement, JCPOA, with Iran, showcasing how increasingly presidents have become adept in utilising their implied powers to transcend constitutional checks and balances.
-the impeachment process has become increasingly ineffective due to extreme partisanship. Despite strong evidence of “abuse of power” and “incitement of insurrection” in Trump’s two impeachment trials, the Senate has failed to convict him, signalling that party loyalty often outweighs constitutional duty. The way the Senate failed both times of Trump’s impeachments to muster a two-thirds majority required to convict Trump, the evident hyper-partisanship diminishes Congress’s ability to work together to resist presidential encroachments.
Judicial branch check of the executive branch
-Trump v. United States (2024) bolsters Trump’s power by granting him absolute immunity from prosecution for official acts, significantly insulating former presidents from legal accountability. This creates a broad zone of protection that may discourage future prosecutions and embolden unilateral executive actions. By raising the threshold for what counts as criminal liability, the ruling strengthens presidential authority and sets a powerful precedent for expanded executive power.
-these trends indicate that while formal checks on the executive remain, their effectiveness has been significantly weakened by growing presidential power and political polarisation.
Congress continues to serve as a vital check on both the executive and judiciary and be constrained by constitutional checks and balances, ensuring the balance of power between the branches …
-the legislative branch has the authority to override presidential vetoes, which could indicate an effective check and parameter over the president’s perceived attempt to exploit their unilateral power of a presidential veto.
-a recent example of this was in 2021, when Congress overrode Trump’s veto of the National Defense Authorisation Act with a wide margin, indicating its ability to assert itself against the president.
-in addition, the Supreme Court, while being able to declare acts of the executive branch as unconstitutional, can also declare acts of Congress to be unconstitutional- a form of judicial review established in Fletcher v Peck (1810) where it was the first instance of the Supreme Court declaring a state law unconstitutional.
-the check over Congress can be outlined in the ruling of US v Windsor (2013) where the Court declared hat the Defense of marriage act, which denied federal recognition of same-sex marriages was a violation of the due Process Clause of the fifth amendment. While not only did this ruling act as a check and revision of Congress’s legislation, but also effectively updated the meaning of the Constitution.
-thus, these examples could indicate that constitutional checks and balances are still maintained and imposed effectively over the legislative branch, given the way their legislation is policed and scrutinised through legal parameters by the judiciary and it being able to overturn a presidential veto when necessary
A notable example from the last decade is Shelby County v. Holder (2013), where the Supreme Court struck down Section 4(b) of the Voting Rights Act. The Court ruled that the formula used to determine which jurisdictions required federal preclearance for changes to voting laws was outdated and unconstitutional. In response, Congress introduced several revised versions of the Voting Rights Advancement Act, though none have yet been passed into law—highlighting both the judiciary’s power to invalidate laws and the legislative branch’s attempt to revise and restore their intent.
Congress has become a constrained check due to hyper-partisanship…
-a more convincing argument is that Congress has become increasingly an ineffective check over the other branches due to hyper-partisanship leading to both legislative gridlock and the increasing difficulty to garner a super-majority to override presidential vetoes that subsequently harm and diminish their legislative role.
-this is profoundly exemplified by the fact that since 1789, the president has vetoed more than 2,500 bills and congress has overridden less than 5% of these- a proportion that will only decrease with hyper-partisan threatening congress’s constitutional check.
-in particular, in May 2020, Trump vetoes the Iran War Power Regulation, a provision that congress intended to limit the President;s ability to wage war against Iran and effectively apply legal parameters and constraints to the President’s role as Commander-in-chief. This example strikingly showcases not only how difficult it is for congress to garner a two-thirds supermajority, but also how adept Trump, as president, is in amplifying their own constitutional role and encroaching and deterring legislative role of Congress.
-in addition, in 2018-2019, Congress’s constitutional role of “power of the purse” has also been shown to be impacted by hyper-partisanship where it has become more difficult for them to agree on a budget when the government is divided- in this case the democratic majority in the House disagreed with President’s funding measure on border security. This legislative gridlock led to the largest period of a federal government shutdown of 35 days. Even after several concessions, Trump, unsatisfied with the funding proposed, declared a national emergency in order to fund the wall.
-this indicates clearly the way as polarisation and gridlock continue to dominate Congress, its ability to serve as an effective check on the other branches has significantly erodes and subsequently lead the other branches to exploit their means to reach their ends, showcasing how the effectiveness of constitutional checks and balances has declined
The judiciary remains a crucial pillar of constitutional checks and balances ensuring both the executive and legislative branches adhere to constitutional principles…
Judicial review, established in Marbury v Madison (1803), allows the courts to strike down unconstitutional laws and executive actions, bolstering its constitutional checks over the other branches.
For example, in Trump v Vance (2020), the court ruled that Trump does not have absolute immunity from the issuance of a state criminal subpoena, proving that even a sitting president remains subject to legal scrutiny.
Lower federal courts have also played an essential role in checking executive power, such as when multiple district courts blocked Trump’s efforts to withhold federal funding from sanctuary cities in 2017, showcasing how the judiciary can be seen as an effective check over the executive branch with regards to it overstepping its authority.
Additionally, the judiciary is subject to constitutional checks that are enumerated in Article 3 such as lifetime occupation and fixed salary in order to prevent any political bribery or pressures to tarnish their intended neutrality and independence when ruling decisions.
The way Congress possesses the power of impeachment, trial and removal from office of members of the judiciary if found guilty of misconduct could be seen as an obstacle to the exercise of absolute judiciary power. Thus, suggesting that constitutional checks and balances over the judiciary are still effective as they can be seen as holding the judiciary to account without encroaching the desired separation of powers.
The judiciary has become increasingly politicised, undermining its role as an impartial check on government power.
-the Supreme Court’s ideological divide has led deeply controversial decisions, such as Dobbs v Jackson (2022), which overturned Roe v Wade despite nearly 50 years of legal precedent. This decision not reversed a constitutional right but also demonstrated how shifts in the Court’s composition, 6-3 of a conservative leaning, can drastically reshape legal interpretations. In particular, given the way they are nine unelected political appointees, their rulings can exert undue power and consequences over the other democratically elected branches, such as the case of Citizens United v FEC (2010).
Citizens United v FEC (2010) not only killed the Bipartisan Campaign reform Act 2002, which aimed to cut election costs and restrict political spending of corporations and unions, but also showcased how the judiciary has become more involved in meddling in political affairs, undermining the desired separation of powers.
Moreover, lifetime appointments also mean that justices serve for decades, entrenching ideological leanings that may not reflect contemporary sentiment. This can be stemming from the highly politicised confirmation process which a Senate Judiciary Committee undertake. This is elucidated further by the statement “the nominations of to the Supreme Court are seen as political footballs” (Bennett), which stems from the growing party polarisation infiltrating their voting as they have increasingly voted along party lines: Amy Coney Barrett 2020 (52-48), Ketanji Brown Jackson 2022 (53-47).
-thus this indicates as the judiciary power moves more politicised, its ability to serve as an independent check on power is increasingly compromised, demonstrating strongly how constitutional checks and balances are no longer effective
Conclusion
In closing, while each branch retains mechanisms to check the others, the effectiveness of their constitutional checks and balances has fluctuated due to growing partisanship, executive overreach and judicial politicisation, which has notably weakened their impact: the executive branch’s expansive exercise of their unilateral powers has sidestepped and rendered futile checks of the other branches and the judiciary having more of an appetite to meddle and resolve political conflicts
