Checks and Balances

Checks and balances

‘Checks and balances’ refers to a process whereby each branch exercises control over the actions of the other branches of government.

Checks by the executive on the legislature

Through the State of the Union address in January of each year the President has the power to recommend legislation to Congress. The event is broadcasted on live TV, addressed to both Houses, cabinet members and the nine justices of the Supreme Court. The State of the Union address gives the President the opportunity to tell Congress what legislation to pass in order to lay out his legislative agenda. 2015 State of the Union address proposed increasing taxes for the superrich (decreasing for the middle class), strengthen ties with Cuba, plans on getting rid of loopholes and seeks to introduce legislation that will give Obama authorisation to use more force against ISIS. In addition, the president has the power to veto bills passed by Congress. So far Obama’s only used the power of veto twice. Obama made a statement during the State of the Union address that any attempts made by the Republicans in attacking healthcare or immigration reform will face a presidential veto.

Checks by the executive on the judiciary

The president nominates all federal judges (trial court, appeal court and Supreme Court). During his first term Obama made two appointments to the Supreme Court Sonia Sotomayor (2009) and Elena Kagan (2010). It’s important to remember that the appointments are made on the basis that the judges share a similar political outlook as the president; this enables the president to further their agenda for years to come. The second check is the power of pardon, which basically gives the president the power to excuse a person of their offences. Obama has only pardoned 53 people so far, the most recent one was Donna Wright in 2013, and her offense was embezzlement and misapplication of bank funds.

Checks by the legislature on the executive

The reason the legislature has so many checks on the executive is because the Founding Fathers seriously feared creating an all-powerful executive position that can lead to tyranny.

•      Congress can amend, block or reject items of legislation recommended by the president. In 2010, after being watered down to please opponents, Obama’s healthcare reform bill passed but was significantly less ambitious than had been anticipated. In 2011, Congress rejected Obama’s proposed job creation legislation
•      Congress can override a president’s veto. It requires a 2/3 majority in both Houses. None of Obama’s two existing vetoes have been overridden by Congress
•       ‘Power of the purse’ is a power granted to Congress which means that all the money the president wants to spend on his policies must be voted for by Congress
•      Congress has got the power to declare war – last time this power was used in 1941 on Japan. In 2002 Bush was granted authorisation from Congress to use military force in Iraq. House approved by 296-182 and the Senate 77-23
•       The Senate is also given the power to ratify treaties, requiring a two-thirds majority. In 2010 the new START Treaty with Russia was ratified by 71 votes to 26
•      The Senate has the power to confirm all appointments made by the President to the executive and federal judiciary. Executive appoints subject to the Senate’s confirmation include: cabinet members, ambassadors, heads of important agencies like the CIA and FBI. Only a simple majority is required for confirmation. And they have to also confirm judicial appointments
•      Power of investigation allows Congress – through its committees – to investigate the actions or policies of any member of the executive branch, even the president himself. In 2012 the House Oversight and Government Reform Committee launched an investigation of possible security failures by the Obama administration after the murder of four American diplomats in Benghazi, Libya
•      Under serious circumstances, the investigation can lead to impeachment, which enables the legislature to impeach (formally accuse) any member of the executive branch, including the president. Andrew Johnson (1868) and Bill Clinton (1998) are the only presidents to have been impeached so far. Once the House has impeached, the Senate will conduct the trial and if found guilty by a two-thirds majority, the accused person is removed from office. This is the ultimate check – the president holds no similar power – he cannot remove Congress

Checks by the legislature on the judiciary

•      Power of impeachment by the House of Representatives and then trial by the Senate, 2/3 majority results in removal from office. In March 2010, the House of Representatives impeached judge Thomas Porteous for corruption, the Senate found him guilty and he was removed from office that year
•      Congress can introduced constitutional amendments to overturn a decision by the Supreme Court. Congress has recently tried to reverse Supreme Court decisions in flag burning and public prayer

Checks by the judiciary on the legislature

•      Judicial review. The judiciary has the power to use judicial review to interpret legislation as being constitutional or not. E.g. Citizen's United case or just about any case whereby the Supreme Court ruled something being (un)constitutional

Checks by the judiciary on the executive

•      Same power of judicial review over the executive branch. Any action of a member of the executive can be deemed unconstitutional using judicial review