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Separation of Powers Part 2: Checks and Balances

In Part 1, we discussed what the three branches of government are and the role they play in the federal government. Today, we will talk about how the constitution ensures that each of branch checks the power of the other, creating a balance of power. Creatively, this concept is known as checks and balances.

Because checks and balances work in multiple directions, it is better to discuss how they work in terms of constitutional powers as opposed to going branch by branch.

Creating and Enforcing Laws

It is often said that it is Congress’ role to create the laws and the executive’s role to enforce them.  This is one of the ways that the power is balanced between the two. Through the executive bureaucracy, laws are interpreted into regulations and enforced by regulatory agencies. But the checks on power come from the actual process of making the law. Congress is the only branch that can pass laws. The president checks the power by having (somewhat) final say over a bill before it is enacted, either signing it or vetoing it. Congress then rechecks this power by having the right to override a veto with a two-thirds majority in each chamber. Finally, the judiciary then checks the power of both chambers by interpreting whether or not laws (or presidential actions) have been implemented constitutionally or if they are constitutional at all. It should be noted that the Constitution does not explicitly give the courts this power but has been developed through case law and precedent (judicial review).

There are other factors within the power to legislate that serves as checks and balances. For one, only Congress can declare war, but the president commands the military. Congress also sets the federal budget, which determines how the other branches will be funded. On the other hand, the vice president is given the power to break a tie in the Senate, a minor check from the executive branch.

Appointing and Impeaching Officials

The president has the power to appoint judges, ambassadors and other high-level advisors. The Senate gets to give “advice and consent” on these appointments, approving with a simple majority. 

The legislative branch also has the power of impeachment. They check the executive by having the power to impeach the president. The House draws up articles of impeachment for “high crimes and misdemeanors,” passed by a simple majority. The Senate then acts as the jury of the trial with the House acting as the prosecutors. The judiciary even gets involved with the Chief Justice acting as the judge. To remove the president from office, two-thirds of the Senate must vote in favor.

Congress is also given the power to impeach judges, checking the judicial branch. Judges are given lifetime appointments and selected by the president. Aside from death or retirement, this is the only way they can be removed from the bench. The process is largely the same as previously described. (But impeachment is a topic for another day).

Presidential Pardons and other Judicial Checks

The Constitution also grants the executive the power of pardons, a check over the judicial branch. This means that the president can relieve someone of the legal consequences after being criminally convicted. This was most recently in the news as President Trump commuted Roger Stone’s sentence. 

In the same vain, the Constitution makes no requirement that the president carry out the orders of the judicial branch. That does not mean that the executive can take actions ruled unconstitutional by the courts however, the president does not have to enforce its rulings. As Andrew Jackson said after a ruling he did not like, “John Marshall has made his decision; now let him enforce it!”