Separation of Powers and Checks and Balances Notes

Students and citizens often confuse two fundamental concepts of the American government: separation of powers and checks and balances.
Separation of powers refers to the division of the national government into three distinct branches based on the structure of the U.S. Constitution.
These branches are the legislative branch, the executive branch, and the judicial branch.
Craig follows the order of the branches as they appear in the Constitution, noting that the legislative branch is discussed first because it was intended to be the most important.

Article I of the Constitution outlines the legislative branch and is the longest and most detailed of the seven articles.
Primary Function: The main job of the legislature is to make laws.
Secondary Function: In addition to lawmaking, Craig humorously notes that the legislature often engages in political blame-shifting and campaigning for reelection.
Structure: The legislature is comprised of the House of Representatives and the Senate.

Article II, Section I provides the foundation for the executive branch: "The executive power shall be vested in a President of the United States of America."
The executive branch is less explicitly detailed in the Constitution compared to the legislative branch.
Primary Function: The executive branch is responsible for executing the law, which means carrying out and implementing Congressional acts.
Conceptual Role: The President acts as the "CEO" of the United States, ensuring that the government governs.
Constitutional Basis: The President's executive authority is formally grounded in the Oath of Office: "I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The judicial branch, often referred to as "the Courts," is outlined in Article III, which is the shortest of the first three articles, containing only three sections (compared to the four in Article II).
Primary Function: The job of the judiciary is to interpret the law and explain its meaning.
Structure of the Courts: Article III, Section I states: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."
Congressional Power: The Framers realized the U.S. would need more than one court, but explicitly gave Congress the power to create all other inferior federal courts.

Checks and balances is a system where each of the three branches of government has the power to limit, or "check," the other two branches.
This design creates a balance between the three separate powers to prevent any one branch from becoming too dominant.
The Constitution grants the legislature the greatest number of checks on the other branches because the Framers were particularly concerned about the potential for tyranny, specifically a monarchical figure like King George III.

Impeachment and Removal: The House of Representatives has the power to impeach the President. The Senate can then remove the President from office, provided that $\frac{2}{3}$ of the Senators vote for the conviction.
Advice and Consent: The Senate can check the President's appointment of federal judges and other government officials by rejecting them.
Investigations: Both branches of Congress have the authority to investigate executive activities and executive officers.
Legislative Override: If the President vetoes a law, Congress can override that veto with a $\frac{2}{3}$ vote in both the House and the Senate.
Policy Control: Congress can refuse to pass laws requested by the executive branch.
Power of the Purse: Perhaps most significantly, Congress can refuse to appropriate funds (money) for programs proposed by the executive branch.

Impeachment: Congress has the power to impeach and remove federal judges, just as it can with the President.
Nominations: The Senate can reject judicial nominees before they are appointed to the bench.
Structural Changes: Article III allows Congress to change the federal court system by adding or removing courts.
Jurisdictional Power: Congress has the power to change the jurisdiction of federal courts.
Legislative Overrides: Congress can pass new laws that effectively override Supreme Court decisions, provided those decisions were not based on an interpretation of the Constitution.
Constitutional Amendments: As a last resort, Congress can propose Amendments to the Constitution to overrule court decisions. An example is the 13th, 14th, and 15th Amendments, which were used to overrule the Dred Scott decision.

Checks on the Legislature: - Veto Power: The President can veto laws passed by Congress to prevent them from taking effect. - Special Sessions: The President can call Congress into a special session but cannot force them to pass specific laws. - Implementation Discretion: As the branch that carries out the laws, the executive may implement them in ways that differ from Congress's original intent. - Vice Presidential Role: The Vice President serves as the President of the Senate and is given the power to break ties in Senate votes.
Checks on the Judiciary: - Appointments: The President nominates Supreme Court justices and federal court judges, shaping the ideological leanings of the entire court system. - Pardons: The President can issue pardons to individuals convicted by the courts, effectively canceling the judicial judgment. - Enforcement Discretion: The President can refuse to carry out and enforce court decisions.

Despite being considered the "weakest" branch because it relies on the other two for action and enforcement, the judiciary possesses powerful checks:
Checks on the Legislature: - Judicial Review: The judiciary can declare laws passed by Congress unconstitutional. - Impeachment Presence: The Chief Justice of the Supreme Court presides over impeachment trials.
Checks on the Executive: - Unconstitutionality: The judiciary can declare executive actions unconstitutional. A landmark case in this regard is Youngstown Sheet and Tube Company vs. Sawyer. - Criminal Warrants: The court issues warrants for federal crime cases. - Impeachment Role: The judiciary (specifically the Chief Justice) presides over impeachment trials in the Senate.
Summary Power: The primary check used by the courts is the power to invalidate laws and executive actions.

The Framers implemented separation of powers and checks and balances because they were terrified of a tyrannical central government that would destroy citizens' rights, a fear stemming from their experiences with the British monarchy.
James Madison provided the definitive explanation for this system in Federalist 51.
Madison argued that the "great security against a gradual concentration of the several powers in same department" is giving those who administer each department the "necessary constitutional means and personal motives to resist encroachments of the others."
Madison famously noted that these devices are a reflection of human nature: "It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature."
The logic held that because people are not "angels," government requires internal safeguards to protect the populace from their leaders' potential for fallibility or corruption.