Past paper questions

through the President’s veto power, and the ability of Congress to override veto, there appears to be ann effective balance of power between the President and Congress

the president has the power to veto legislation, checking the power of Congress e.g. Obama vetoing keystone pipeline

this is significant because it means Congress does not have full power over whatever legislation passes, and the President, who has significant democratic weight behind them, can impact the legislative process

however, this power is also checked by Congress’ power to override a veto via a super majority in Congress

both appear to check each other’s powers effectively

BUT

actually doesn’t work in practice

hugely difficult for congress to override a veto - only 7.1% have ever been overridden

gives the President huge unchecked power e.g Reagan vetoed 78 times, only 9 overridden

also a problem of divided government, and governments are becoming increasingly divided

congress can check the president’s power in their appointments, especially SC appointments

President nominates but senate confirms — can lead to nominations being rejected e.g Harriet Miers, Robert Bork

especially important because the SC plays such an important role in checks and balances

BUT

actually not an effective system because of how politicised and partisan it has become

since 2005, all votes for SC nominations have been party-line votes

e.g. Gorsuch, 51 vs 0 Republicans vote for him

has led to a lack of scrutiny/effective checks and instead a politicisation — if a President commands a majority then there is effectively no check on their power

perhaps the most powerful form of checks and balances

can check both congress and the president through judicial review, challenges them if they are acting unconstitutionally

e.g. Boumedeine vs Bush 2008, checked both Congress and the President’s power - and it was Bush’ own appointment who composed the majority opinion against him

US vs Nixon

BUT

with the increasing politicisation of the SC, this check power has become ineffective

SC are arguably expanding the President’s powers e.g. Trump vs Miami over Muslim country ban,

the process for amending the constitution is a complex one — it requires a 2/3 approval vote in Congress as well as the approval of ¾ of the states

This is significant because it ensures that the constitution cannot be quickly amended based on political whims, evidenced by the fact that there’s only been 27 amendments

BUT

this has actually created a constitutional tyranny of the minority

widely supported amendments can be stopped by a very small minority

Equality Act — supported in congress and the senate but rejected by 13 states — just 24% of the population prevented it from passing

the constitution has ensured an effective protection of rights

first 10 amendments to the constitution make up the bill of rights, could never really be overturned or amended, entrenched element of the constitution

also important because citizens know their rights and can easily access them e.g. free speech, fair trial

BUT

this has led to an increasingly outdated constitution in terms of the rights it protects

e.g. DC vs Heller — militias are no longer really a thing, but the right to bare arms is still protected

also it has become impossible to introduce new laws around gun control

due to the difficulty in amending, the SC becomes a powerful arbiter in defending rights and interpreting the constitution

particularly beneficial because they are unelected and serve for life so not subject to direct political pressure/fear of losing their seats

BUT

the difficulties in amending has made the SC far too powerful

apart from the introduction of the 16th amendment in 1913, no SC decision has been overturned by an amendment

perhaps more concerning because constitutionally interpretations have changed e.g. Dobbs vs Jackson overturning Roe v Wade — rights are actually not consistent

The constitution protects the structures of federalism - the 10th amendment asserts that powers not reserved for federal government remain for the states, and guarantees the federal structure of government

Furthermore, each state has three layers of government and local militia to enforce law and federal jurisdiction

BUT

the necessary and proper clause gives the federal government huge power - its elastic because its power is so malleable and can be extended

Has enabled congress to legislate in many areas outside of its policy in areas usually reserved for states e.g. No Child Left Behind 2002 — interferes in education, ACA — expands role of federal government in healthcare

commerce clause also been used to enact bans over things like drugs and interstate commerce

all states have their own governments which function independently of Washington

they legislate in important areas of policy e.g. healthcare, education, allow for state specialisation

visible with the variations over abortion laws currently e.g. banned/restricted in 21 states

cannabis is legal in 24 states

BUT

the federal government has widening reach

over history it has tended towards centralisation

e.g. Civil Rights Act and Voting Rights Act taking away power in race relations from states, enforcing uniformity

Increase number of jurisdictional and federal departments from 3 to 15

expansion of EXOP

all demonstrate an expansion in the power of federal government

have also ruled in favour of greater federal powers

Obergefell vs Hodges — made gay marriage recognition compulsory

McCulloch vs Maryland — federal government could open up a national bank

Brown vs BoE — made segregation illegal and gave the federal government the power to enforce this

BUT

Has protected federal rights many times in the past, and increasingly continues to do so under the Roberts court

Dobbs vs Jackson — SCOTUS ruled abortion rights as being under the remit of the states

NFIB vs Sibelius — claimed the government couldn’t use the commerce clause for some of its medicaid provisions

US vs Lopez — commerce clause didn’t cover gun overreach

Shelby County vs Holder — struck down article 4 and 5 of the voting rights act, increased state independence over thei r own voting laws, saw changes to areas like South Carolina

increases the number of political access points as sovereignty does not purely lie in the federal government

interest groups or campaigners can target state legislators as well as federal government

e.g. ‘Pro-Life America’ and ‘It Goes Too Far’ ran campaigns over Arizona’s ballot initiative over abortion

BUT

this can actually complexify problem solving

as each state is independent in solving its own problems, at a national level this can become hugely complicated

Obama’s ACA was challenged by many states which didn’t want to comply

gay rights before Obergefell vs Hodges was applied inconsistently

pluralism of interest groups and access points leads to excessive representation

federalism permits regional diversity

cultures can be accomodated for via federalism e.g. Ohio’s non-rectangular state flag, differences between Texas and California over tax rates, native history included in states such as New Mexico

also allows for a decentralisation of political beliefs - a ‘100 party system’, e.g. Joe Manchin, a democrat for a more conservative, ‘blue dog’ state

BUT

it can mask inherent inequalities

structural, racial and economic inequalities are entrenched by federalism

Shelby County vs Holder — led to a roll back of voting protections, particularly detrimental in southern states where it has obstructed black Americans from voting

has also led to states getting left behind economically e.g. Mississippi

federalism can allow for a state check on federal government power, preventing a tyranny government, as well as a government check of state power

the SC become the arbitrers of this, upholding theoretically the balance intended by the constitution

US vs Texas 2016 — upheld abortion ban

New Jersey vs New York — who controlled Ellis Island

BUT

this can frustrate the national will

there are more powers to consult when making national actions and modernising rights protections

e.g. advocating for gun restrictions in southern states is politically difficult and causes loss of support, has also been subject to legal challenges e.g. DC vs Heller

state laws can clash with and challenge federal laws e.g. Dobbs v Jackson originated in Mississipi, Arizona clashed with federal immigration law in Arizona vs US