checks and balances

how can the executive check the judicial branch? (two)

• appoints federal judges

• presidential pardon

  • can overturn judgements of the judiciary

how can the judiciary check the executive? (one)

• can declare executive actions unconstitutional

how can the executive check the legislature (Congress)? (four)

• president can veto congressional legislation

• can propose legislation

• can use executive agreements rather than treaties to avoid Senate ratification

• makes appointments to federal posts

how can the legislature check the executive? (seven)

• can override presidential veto

• confirms appointments of cabinet members and judges (Senate)

• ratifies treaties (Senate)- 2/3 of Senate

• can reject a budget submitted by president

• can declare war- check on the president’s power as commander in chief of the armed forces

• power to investigate the executive branch

• can impeach and remove president

how does the legislature check the judiciary? (three)

• Congress can propose constitutional amendments to overturn a decision of the Supreme Court

• approves appointments of federal judges

• can impeach and remove judges

how does the judiciary check the legislature?

• can declare Acts of Congress unconstitutional using judicial review

examples- legislative checks on the executive

• Trump tried to repeal Obamacare but he was blocked by Congress in 2017

• Overriding presidential veto:

  • Since 1789, the president has vetoed more than 2500 bills and Congress has overridden less than 5% -very rare

  • jan 2021- Congress overrode Trump’s veto to pass the NDAA

• power of the purse

  • 2018 Congress couldn’t agree with Trump over budget becausee Democratic maj disagreed

  • Congress can use this to affect policy:

    • Congress sought withdrawal from Iraq by restricting military spending under Bush

  • results in govt shutdown when Congress fails to approve president budgets

• declaring war

  • War Powers Act of 1973 gave Congress the right to withdraw troops from Somalia under Clinton

  • Trump could not order military action against Iran without seeking Congressional permission first

• impeachment powers:

  • The impeachment of Bill Clinton in 1998 on charges of perjury and obstruction of justice

  • impeachment of Trump in 2019 and 2021

    • 2019→ for soliciting foreign interference to help re-election in 2020 election

    • 2021→ inciting insurrection against US state on Jan 6 Capitol attack

  • Congress can also impeach other members of the executive- members of the cabinet

    • 2024→HoR impeached Alejandro Mayorkas, Secretary of Homeland Security

      • first cabinet member to be impeached since 1876

• ratifying treaties:

  • 1999 Senate rejected the Comprehensive Test Ban Treaty

• investigations using committees:

  • CARES Act oversight commission has oversight of the effectiveness of the federal government’s implementation of the CARES Act 2020

• rejection of legislation

  • since losing control of the House of Reps 2022 midterms., biden aw many of his legislative aims blocked

    • e.g. politicing reform, immigration, codifying abortion rights

legislative checks on the judiciary examples

• Rejecting/ Confirming judge nominations:

  • 1987, President Ronald Reagan nominated Judge Robert Bork to the U.S. Supreme

    Court.

    • However, after intense scrutiny during Senate confirmation hearings, the Senate voted against his nomination.

    • prevented Bork from serving on the Supreme Court

  • Republican Senate rejected Obama’s nomination of Merrick Garland in 2016

  • Andrew Puzder (Trump’s choice in 2017 as secretary of labor) withdrew following concerns from Republican Senators following his personal background

• Proposing Amendments to constitution:

  • 1909 → Congress proposed 16th Amendment to grant Congress the power to levy income tax in opposition to the Supreme Court ruling that federal income is unconstitutional

• Impeaching federal judges:

  • eight members of the judiciary have been successfully impeached

  • most recent one→ 2010 - Thomas Porteous impeached and removed from by Senate on corruption charged

judicial checks on the executive example

• declaring executive actions unconstitutional:

  • in 2014, National Labor Relations Board v Noel Canning:

    • Court ruled that Obama had acted unconstitutionally by making appointments to the National Labor relations Board without the Senate’s approval

  • in june 2023

    • SC ruled that Biden’s $430 billion student debt forgiveness plan was unconstitutional

  • 2017→ SC stopped Trumps’s executive order banning entry to the US for citizens from 7 Muslim countries

  • United States v. Nixon (1974)

    • President Richard Nixon reluctantly complied with the Court's order to release the Watergate tapes, demonstrating the executive's adherence to judicial decisions.

• declaring Acts of Congress unconstitutional:

  • In June 2022, in the case of Dobbs v. Jackson Women's Health, the US Supreme Court overturned the constitutional protection for pre-viability abortion confirmed in Roe v Wade (1973).

  • Federal Election Commission v Ted Cruz for Senate 2022

    • SC struck down section 304 of the BCRA 2002 which limited the amount of money that candidates could be paid on personal loans to ther campaign

  • United States v Windsor 2013

    • SC declared Defence of Marriage act (1996) as unconstitutional

      • didn’t offer equal protection to gay and straight couples

      • gay marriage was then legalised

executive checks on the legislature example

• Vetoed bills:

  • President Donald Trump vetoed the National Defense Authorization Act (NDAA) for the fiscal year 2021

  • May 2020, Trump vetoed the Iran War Powers regulation, which wouldve limited the President’s ability to wage war against Iran without congressional approval

  • Obama signed an executive agreement (JCPOA) with Iran as he knew Congress woul not ratify any nuclear deal with Iran

  • Biden has so far vetoed 10 bills

• the President formally recommends legislation through their State of the Union Address

  • e.g. Biden 2023→ implored Congress to pass his legsilative reforms

  • Obama 2010→ used his SoU address to focus on prassing ACA which was passed a few months later

judicial checks on the legislature example

• Fletcher v Peck 1810→ first instance of SC declaring state law unconstitutional

• United States v Windsor → SC declared Defence of Marriage Act as unconstitutional

executive checks on the judiciary

• President Franklin D. Roosevelt's attempt to expand the Supreme Court in the 1930s,

  known as the "court-packing plan," was a notable executive effort to influence the

  judiciary.

• Trump was able to make 3 appointments to SC during his presidency, were all conservatives

  • Republican dominated appointments helped the overturning of Roe V Wade 2022

• Presidential pardons- allows presidency to forgive individuals (usually political allies/ friends) for federal crime

  • e.g. Ford pardoned Nixon over the Watergate scandal

  • Obama pardoned over 100 individuals on drug use

What is bipartisanship?

Close cooperation between the two major parties to achieve desired political goals. In the US System of government, it may be crucial for political success. The framers of the Constitution hoped to encourage a spirit of bipartisanship and compromise between the president and Congress

What can happen as the opposite of bipartisanship?

Gridlock-no progress or productivity within Congress

Example of success coming from bipartisanship (Bush)

• Republican president W Bush managed to achieve educational reforms in 2001-02

• He worked with leading congressional Democrats such as Edward Kennedy

what is a divided government?

When the presidency is controlled by one party, and one or both houses of Congress are controlled by the other

Divided government stats

• 52 years between 1969-2021

  • 36 years of divided govt

  • 24 of these years- both houses in opposition to the party in presidency

Has divided govt always been the norm?

NO- from 1921-1969, only a divided govt for 10 years

How can divided governments sometimes be effective?

• There is more scrutiny

  • bills are scrutinised more closely

  • treaties are checked carefully

  • Nominees questioned more rigorously in the confirmation process

How can divided governments be ineffective? (scrutiny and polarisation)

• When Congress and president are of the same party, legislation , nominations, treaties are passed through without much scrutiny as there should be

• Party polarisation has made bipartisanship more difficult to achieve because the ideological differences make compromise much more difficult to reach

Example of failure of divided governments (116th Congress)

• 3 Jan 2019-3 Jan 2021

• Same composition of 98th congress (same Senate and president but opposing HoR)

• However only passed 344 laws

  • Made it one of the least productive Congress of the last 50 years, due to increased party polarisation

• Joe Biden even had to appoint more centrist Senators to avoid the extreme polarisation of congress

Example of ineffective divided govt- Obama

Republican Mitch McConnell rejected 105 judge appointments by Barack Obama

Does the US Constitution still work- YES

• Federalism has proved to be a good compromise between strong national government and state government diversity

• The text has proved very adaptable to changes in US Society

• The demanding amendment process has usually prevented ill conceived proposals for amendment

• Rights and liberties of Americans have been protected

• The SC power of judicial review has made it more adaptable through interpretative amendment

Does the US Constitution still work- NO

• The amendment process is long and difficult- almost impossible to amend parts that are no longer applicable to add parts that a maj desires

• SC has too much power to amend meaning of constitution through judicial review

• Some parts make little sense in today’s society

  • The Electoral College

• Some parts are outdated and don’t work as the framers of the Constitution envisaged