The following is an extract from Lesson 2 of An Introduction to the U.S. Congress. You can get all of the lessons here: https://cffad.org/topic/#congress-part-1
When thinking about how to create a system of checks and balances, some of the framers were worried that the new national government could become too tyrannical if its powers were too centralized. In the end, they came up with a two-part solution that addressed the balance of power between the federal government and the states and the balance of power within the federal government itself. We address the second of these in this post.
Checks & Balances within the federal government. The second part of their solution was to create a system of checks and balances through the separation and sharing of powers between the three government branches – and within Congress itself. A phrase within Federalist 51 captures the core idea elegantly, “Ambition must be made to counteract ambition.”
The choice to separate and share powers in a system of checks and balances was a reaction to fears laid out in Federalist 47 by James Madison. In his words,“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” He spelled out three specific timeless risks:
- “When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner.” At least two historical examples were available to Madison and the other framers: the British parliament without a monarch (1649-1660) and the several legislative powers of the monarch under George III (1760-1820).
- “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.” This combination was frequently seen in Great Britain in the framer’s time.1 It was duplicated to some extent in some of the states. Madison, again in Federalist 47, gives many examples from the state governments where this joining was allowed.
- “Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR.” Henry the Eighth is a good example. Although he is most famous for beheading two of his wives, he ordered the execution of thousands of people for heresy, treason, and for denying his royal supremacy as head of the English Church.2
Here are the key elements of the checks and balances built into the Constitution:
- To keep the congressional and executive branches separated, Article I, Section 6 of the Constitution prohibits members of Congress from holding positions in the executive branch.3 This prohibition makes it impossible to establish a parliamentary system of government.4
- The Legislative Branch (Congress):
- Congress is divided against itself by design.5 The House of Representatives and the Senate must agree on any legislation before it becomes law. (Article I, Section 7).
- Congress makes federal laws, but Article I, Section 7, gives the president the power to veto legislation unless both houses of Congress can overcome the veto with a two-thirds or better vote.
- Congress has budgetary powers. Without the funding that Congress chooses to provide by law, the other branches will not have any resources to do anything.
- The Executive Branch (The presidency and executive agencies):
- Article II, Section 2, Clause 2 requires the president to seek the advice and consent of the Senate when making treaties and appointments of key officials such as ambassadors, Supreme Court justices, and many other executive office officials. (For more on this subject, see our course on the Presidency, Lesson 3.)
- The executive branch cannot act independently of the law. It must take care to faithfully implement and enforce federal laws (Article II, Section 3). If it does not, Article II, Section 4 states that the president, vice president, and all civil officers of the United States can be removed by impeachment if convicted of treason, bribery, or other high crimes and misdemeanors.
- The Judicial Branch (The Supreme Court and appellate courts):
- While the Supreme Court can interpret the constitutionality of a law or executive action, Article III, Section 2, Clause 2 allows Congress to control the laws the courts may review. Congress also has a role in advising and consenting to the appointment of Supreme Court justices (Article II, Section 2, Clause 2) and has the power to impeach those justices (Article II, Section 4).
NOTE: The combination of representative democracy with an elected president and the separation and sharing of powers is consistent with the modern definition of a republic. (See our course America: Republic or Democracy to learn more about such distinctions.)
An Example of the Separation of Powers in Action
Congress passed the Stolen Valor Act in 2005, which punishes individuals who misrepresent military honors they have received. A citizen challenged the law, arguing it was an unconstitutional infringement on free speech. The judicial branch agreed in 2012 the law was unconstitutional. The executive branch established a government-funded national database of medal citations for verifying military honors in response to the court ruling. The legislative branch in 2013 responded with new legislation to address the constitutional problems of the 2005 legislation.
Source: Administrative Office of the U.S. Courts.
FOR REFLECTION: The system of government set up by the framers creates multiple opportunities for political power to be divided and shared between the main political parties: between the federal government and the state governments, across the state governments, between Congress and the presidency, and even within Congress.
Do you think this system forces the parties to work together, or does it make gridlock inevitable – or does the answer depend on circumstances? If you think circumstances matter, then how and why?
1. “The History of Parliament: British Political, Social & Local History.” From https://thehistoryofparliament.wordpress.com/2023/04/26/liberalism-the-law-and-parliament-in-modern-british-history/
2. “The killer king: How many people did Henry VIII execute?” From https://www.history.co.uk/article/the-killer-king-how-many-people-did-henry-viii-execute
3. There are no federal constitutional prohibitions against members of the judiciary serving in the executive branch, nor the joint holding of federal and state offices.
4. In parliamentary systems, the executive is a prime minister who derives legitimacy from their ability to command the support (“confidence”) of the parliament, to which it is accountable. Members of the cabinet are also ministers or members of the parliament. They often belong to the same party as the prime minister.
5. James Wilson, representing Pennsylvania at the Convention, cautioned that “if the Legislative authority be not restrained, there can be no liberty nor stability.” He added that legislative power “can only be restrained by dividing it within itself, into distinct and independent branches. In a single house there is no check, but the inadequate one, of the virtue [and] good sense of those who compose it.”