To what extent is the system of constitutional checks and balances an obstacle to effective government?

To what extent is the system of constitutional checks and balances an obstacle to effective government?

Checks and balances refer to specific powers each branch of the federal government possess to prevent one branch from becoming too powerful – such as the Supreme Court’s power of judicial review over the legislature and executive, the president’s ability to veto Congress’ legislation and Congress’ power to overridden Presidential vetoes. In order to have ‘effective’ government, the government must carry out some core functions such as legislate, provide effective defence, protect civil liberties and ensure state power and. However, as seen in recent years with the growing gridlock and infringement of civil liberties and states rights (according to the right), the system of checks and balances has hindered effective government.

One of the roles of the federal government is to effectively legislation, however, with increasing polarisation and the 113^th Congress going down in history as being the most polarised, the system of checks and balances has allowed for consistent gridlock to a point where 2013 was the least productive legislative year since 1948. It’s the role of legislature to ‘check’ the power of the executive and ensure it does not become too powerful, however, combined with polarisation this has led to consistent gridlock over legislation, particularly with regards to immigration reform. The Obama administration set out their aims in 2009 to achieve comprehensive immigration reform, however, legislating this has been hindered in recent years due to a range of congressional powers such as its ability to launch a filibuster and its ‘power of the purse’. This has led to legislation being slow and failing, as seen from the DREAM Act being filibustered to death in 2010 and the Gang of 8 bill being killed off by the House Speaker. However, the existence of checks and balances does not necessarily lead to ineffective government or gridlock because if Congress is gridlocked or obstructionist the President is free to initiate executive orders to circumvent Congress as seen by Obama’s one in November 2014 which sought to help five million illegal immigrants. However, even in this case constitutional checks remain and they hinder effective government, for instance, Congress has the ‘power of the purse’ whereby it is in charge of granting funding for the President’s executive order and this had hindered effective government when earlier this year the Department of Homeland Security came close to shutting down and the Texas legislature put Obama’s executive order on hold.

Another role of the government is to provide effective defence, however, this too has been hindered through checks and balances, thus preventing effective government. Congress passed the Case Act and War Powers Act during the 1970s to limit the executive’s role as Commander in Chief and prevent the President from becoming too imperial. Since Congress has the power to declare war, the president must seek approval before taking military action abroad. This prevents the president from effectively dealing with international crises, as he must wait for the approval of Congress and this check has led to a lot of criticism in recent events. With the threat of the Islamic State growing in the Middle East, Obama has had to submit reports to the Senate requesting more authorisation for military action in the Middle East, however, as a result the government’s response has arguably been slow. A CBS News poll found that only 54% of American’s are satisfied with President Obama’s response to ISIS. Similarly, the issue over the PATRIOT Act and Congress’ power of the purse has hindered effective government – with the Patriot Act set to expire on the 1^st June the House voted to continue funding it but in the Senate this vote was blocked by a filibuster. However, even such existing legislation like the War Powers is not an obstacle to effective government since the President does not always have to abide by it during a time of a huge crisis as illustrated by the 2011 Libya bombings whereby no congressional authorisation was granted to the President. However, Libya was an anomaly in the process and launching military action abroad without Congress’ approval rarely happens, today with ISIS Obama’s response has without a doubt been slow as a consequence of checks and balances put in place.

Another key function for effective government is to protect civil rights and liberties, however, this too has been hindered due to the system of checks and balances, which have allowed for civil liberties to be eroded through Congress’ ability to legislate. For instance, the clearest example is the Patriot Act, which according to many liberals (and some Republicans such as Rand Paul) is a clear infringement upon American’s citizens right to privacy – which is an established right under Griswold v. Connecticut – by enabling the NSA to conduct mass data collection programs of phone and internet data. The legislature’s attempts at renewing the law this year is a clear indication of how checks and balances can lead to civil liberties being eroded. However, checks and balances in this case can also provide for the protection of civil liberties. For instance, the Supreme Court’s check of judicial review on the legislature enables them to continue protecting civil rights as illustrated by US v. Windsor which struck down the Defence of the Marriage Act, thus allowing homosexuals to openly serve in the US Army and Hollingsworth v. Perry whereby California’s Proposition 8 (which sought to ban gay marriage) was struck down, both of these are instances of checks and balances protecting civil liberties which is key to effective government. The Citizens United and SpeechNow.org cases v. FEC are also other examples of rights and liberties being entrenched through judicial review. However, the Supreme Court is arguably stepping in too much due to judicial activists who are flaunting about judicial review excessively to a point where they’re acting as a quasi-legislative body, thereby hindering effective government and generating an image of an ‘imperial judiciary’.

Moreover, the protection of state rights and powers as detailed in the 10^th Amendment is fundamental to an effective government but Congress’ ability to legislate and the executive’s ‘check’ to tell Congress what to do through the state of the union has also hindered this according to conservatives. The passage of Obamacare, for instance, has been described by the right as being a clear infringement of state rights and is therefore unconstitutional as it can be viewed as the scope of federal government expanding too far to a point where control over health (a local issue) is being taken away from the control of states as it is forcing states to set up health care exchanged for the uninsured and expand Medicaid eligibility, all of which enforces the rhetoric of ‘government creep’. However, as with the argument illustrated above in this case too the system of checks and balances provides for effective government as through judicial review it can also lead to states rights being protected. For instance, in Shelby County v. Holder states rights were expanded by striking down Section 4(b) of the Voting Rights Act, thereby expanding states control over their voting practices and preventing the federal government from getting too involved. Federalism is indeed an important aspect to having effective government, but even judicial review can infringe upon states rights as illustrated by the 2012 Sebelius case which ruled that Obamacare was in fact constitutional (the right still argue its an infringement of states rights), and a further example includes US v. Arizona which struck down section key sections of SB 1070.

Finally, Congressional check on the President is Congress’ power to confirm all appointments made by the President. The president is in charge of nominating Supreme Court justices, some roles to the Executive Office of the President and departments within the federal bureaucracy such as the Central Intelligence Agency and National Security Agency. But, this is check is well known to lead to gridlock and so, prevent effective government. For instance, when John O. Brennan was nominated to be the director of the CIA Senator Rand Paul filibustered his appointment for 13 hours. On the other hand, although this is indeed a check, which without a doubt hinders government there, are other effective checks that allow the government to effectively function. For instance, the power of investigation is a check held by Congress over the executive (and federal bureaucracy) which allows Congress to investigate the actions of the executive and it’s various departments. This has proved to be very effective in recent events when the Senate Intelligence Committee investigated the CIA and it’s treatment of suspected terrorists which subsequently led to the release of the CIA torture report, revealing how the CIA have conducted secret operations in order to torture suspected terrorists. It’s important for the government’s actions to be scrutinised and open for transparency and through the power of investigation, this allows for an effective government to function.

As demonstrated above, the while in some cases the constitutional system of checks and balances can lead to an effective government such as through congressional oversight, other times it leads to gridlock between the branches. It can also lead to civil rights being eroded as well as states rights.