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What You Need to Know About Checks & Balances

The standoff between Congress and the Trump administration is intensifying. Is the Framers’ plan for a separation of powers playing out as they envisioned?

Lately, it seems as if the federal government is at war with itself. The House of Representatives has been investigating the White House, and lawmakers have threatened to impeach President Trump over the findings in the Mueller Report. Earlier in the year, the president vetoed a congressional resolution that would have prevented him from building his wall on the U.S.-Mexico border without Congress’s approval. And a battle over one of Trump’s appointees to the Supreme Court, Brett Kavanaugh, was among the nastiest in memory.

House Speaker Nancy Pelosi has gone so far as to say that the nation is mired in a “constitutional crisis” over the president’s blanket refusal to cooperate with congressional investigations. Trump has responded by vowing not to work with Democrats in Congress on any legislation until the investigations end.

What’s going on? Experts say it’s a particularly heated showdown involving America’s system of checks and balances. The Framers spread power among the three federal branches—executive, legislative, and judicial—and gave each branch the ability to curb, or check, the power of the other two. In many cases, the system works without much fuss, as when Congress approves a president’s Cabinet nominee. At other times in American history, two branches have dug in their heels and fought over their respective powers.

“We’ve had some challenges in the past, and the system responded appropriately,” says Norman Ornstein, a scholar at the American Enterprise Institute, a conservative think tank in Washington, D.C. “But I think we’re at a time of enormous and important testing of the system.”

Here’s what you need to know about checks and balances, and how they might come into play in the year ahead.

Lately, it seems as if the federal government is at war with itself. The House of Representatives has been investigating the White House. Lawmakers have threatened to impeach President Trump over the findings in the Mueller Report. Earlier in the year, 

the president vetoed a congressional resolution that would have prevented him from building his wall on the U.S.-Mexico border without Congress’s approval. And a battle over one of Trump’s appointees to the Supreme Court, Brett Kavanaugh, was among the nastiest in memory.

House Speaker Nancy Pelosi has gone so far as to say that the nation is mired in a “constitutional crisis” over the president’s blanket refusal to cooperate with congressional investigations. Trump has responded by vowing not to work with Democrats in Congress on any legislation until the investigations end.

What’s going on? Experts say it’s a particularly heated showdown. And it’s one that involves America’s system of checks and balances. The Framers spread power among the three federal branches—executive, legislative, and judicial. They gave each branch the ability to curb, or check, the power of the other two. In many cases, the system works without much fuss. An example is when Congress approves a president’s Cabinet nominee. At other times in American history, two branches have dug in their heels and fought over their respective powers.

“We’ve had some challenges in the past, and the system responded appropriately,” says Norman Ornstein, a scholar at the American Enterprise Institute, a conservative think tank in Washington, D.C. “But I think we’re at a time of enormous and important testing of the system.”

Here’s what you need to know about checks and balances, and how they might come into play in the year ahead.

1. Why did the Framers create checks and balances?

There weren’t a lot of functioning democracies to use as examples when the Framers met in 1787 to write the Constitution. Many of them had read the political philosophers of the time and drew on their ideas. They took what they liked from the British system. They borrowed from state governments. And they improvised.

“What they came up with was what they thought was the best of all worlds,” says Corey Brettschneider, a political science professor at Brown University. “The checks are meant to be a way for all the branches to be accountable to the rule of law and the people, without any one branch being able to take over.”

The reason for the Constitutional Convention in Philadelphia, scholars say, was the realization that the Articles of Confederation—the new nation’s first constitution—were too weak to effectively bind the United States together. The Framers understood that the nation needed an executive with some authority to act on matters of national importance. But lurking in the back of their minds was the experience of being ruled by a tyrant, Britain’s King George III. They had fought a revolution to get rid of the king and were leery of putting too much power into the hands of a president.

“The big innovation of the Founders is that you divide power,” says David Azerrad, a political expert at the Heritage Foundation in Washington, D.C. “You don’t put all the power in one place, and you give the branches some control over one another. The underlying premise is that each branch is going to be [protective] of its power and will check the others.”

There weren’t a lot of functioning democracies to use as examples when the Framers met in 1787 to write the Constitution. Many of them had read the political philosophers of the time and drew on their ideas. They took what they liked from the British system. They borrowed from state governments. And they improvised.

“What they came up with was what they thought was the best of all worlds,” says Corey Brettschneider, a political science professor at Brown University. “The checks are meant to be a way for all the branches to be accountable to the rule of law and the people, without any one branch being able to take over.”

The Articles of Confederation were the new nation’s first constitution. But they were too weak to effectively bind the United States together. Scholars say that was the reason for the Constitutional Convention in Philadelphia. The Framers understood that the nation needed an executive with some authority to act on matters of national importance. But lurking in the back of their minds was the experience of being ruled by a tyrant, Britain’s King George III. They had fought a revolution to get rid of the king. That made them hesitant to put too much power into the hands of a president.

“The big innovation of the Founders is that you divide power,” says David Azerrad, a political expert at the Heritage Foundation in Washington, D.C. “You don’t put all the power in one place, and you give the branches some control over one another. The underlying premise is that each branch is going to be [protective] of its power and will check the others.”

March 4, 1789

Date the new federal government began operating, after ratification of the U.S. Constitution the previous year.

2. What does each branch do?

In a nutshell, the legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch evaluates the laws.

The three branches of the federal government are designed to work together but also to limit one another. Congress passes laws, but the president can veto bills passed by Congress, preventing them from taking effect. A veto, however, can be overridden if two-thirds of lawmakers in both the House and the Senate vote to do so.

The president appoints federal judges, including Supreme Court justices, but the Senate has to confirm those choices, a power known as advice and consent. Advice and consent also gives the Senate the authority to approve any treaties the president agrees to with other nations.

The federal courts can rule whether laws approved by Congress and signed by the president are unconstitutional. But those same courts are appointed by the president, subject to Senate approval.

The president can issue an executive order and bypass Congress, but the courts can rule that he’s overstepped his authority and block it.

Congress also provides oversight of the federal government—everything from the military and the Internal Revenue Service to the operation of the White House itself.

In fact, Ronald Weich, dean of the University of Baltimore School of Law, says oversight is “a core constitutional function, a cornerstone of the structural checks and balances on which our federal government is built.”

In a nutshell, the legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch evaluates the laws.

The three branches of the federal government are designed to work together. But they also exist to limit one another. Congress passes laws, but the president can veto bills passed by Congress. If that happens, it prevents laws from taking effect. But a veto can be overridden if two-thirds of lawmakers in both the House and the Senate vote to do so.

The president appoints federal judges, including Supreme Court justices. But the Senate has to confirm those choices, a power known as advice and consent. Advice and consent also gives the Senate the authority to approve any treaties the president agrees to with other nations.

The federal courts can rule whether laws approved by Congress and signed by the president are unconstitutional. But those same courts are appointed by the president, subject to Senate approval.

The president can issue an executive order and bypass Congress. But the courts can rule that he’s overstepped his authority and block it.

Congress also provides oversight of the federal government. They oversee everything from the military and the Internal Revenue Service to the operation of the White House itself.

In fact, Ronald Weich, dean of the University of Baltimore School of Law, says oversight is “a core constitutional function, a cornerstone of the structural checks and balances on which our federal government is built.”

Nerthuz/Shutterstock.com

Political parties have complicated relations between the three branches.

3. How has the checks and balances system evolved?

It’s changed a lot. Experts say that has to do with the rise of political parties and with the expanding role of the federal government—and the powers of the presidency in particular.

The Framers didn’t like the idea of political parties; they were wary of what they called “factions” creating divisions in the government. Despite this fear, parties became part of America’s political landscape very early on—while George Washington was still president.

“Today, parties are essential for things to advance politically, and that complicates the original design,” says Michael Gerhardt, a scholar at the National Constitution Center in Philadelphia. “The rise of political parties increases the opportunity and motivation for conflict.”

The other big change is how powerful the government has become. For the first 75 to 100 years of America’s history, the federal government did little.

“What we think of as national power is really a creation of the late 19th and early 20th centuries,” says Sanford Levinson of the University of Texas Law School.

As the federal government took on a larger role in providing protections and services for citizens—everything from keeping food safe to old-age pensions—the presidency inevitably became more powerful in order to carry out those added functions. In effect, scholars say, Congress has delegated many of its responsibilities to the executive branch over the years, and that has tipped the balance of power among the branches in favor of the executive.

It’s changed a lot. Experts say that has to do with the rise of political parties and with the expanding role of the federal government—and the powers of the presidency in particular.

The Framers didn’t like the idea of political parties. They were wary of what they called “factions” creating divisions in the government. Despite this fear, parties became part of America’s political landscape. And they took root very early on, while George Washington was still president.

“Today, parties are essential for things to advance politically, and that complicates the original design,” says Michael Gerhardt,
a scholar at the National Constitution Center in Philadelphia. “The rise of political parties increases the opportunity and motivation for conflict.”

The other big change is how powerful the government has become. For the first 75 to 100 years of America’s history, the federal government did little.

“What we think of as national power is really a creation of the late 19th and early 20th centuries,” says Sanford Levinson of the University of Texas Law School.

The federal government took on a larger role in providing protections and services for citizens. That included everything from keeping food safe to old-age pensions. The presidency inevitably became more powerful in order to carry out those added functions. In effect, scholars say, Congress has delegated many of its responsibilities to the executive branch over the years. They say that has tipped the balance of power among the branches in favor of the executive.

For the first 75 to 100 years, the federal government did little.

4. What happens if there’s a conflict?

The first thing to understand is that conflicts between the branches, like those between President Trump and Congress, are nothing new.   

“Lawmakers and presidents have found ways to resolve these disputes in the past,” says former Senator Carl Levin, a Democrat from Michigan. “That’s not to say Congress and the White House haven’t battled over congressional inquiries.”

When they do butt heads, there are several options: The two branches may fight it out politically, meaning they try to exert political pressure on each other in an effort to persuade. They can also turn to the third branch for a solution.

That’s what happened during the Watergate scandal that eventually prompted President Richard Nixon to resign in 1974 (see “When Branches Clashed,” below). When Congress was investigating Nixon’s involvement in a cover-up of Watergate, they asked the White House to hand over recordings of Oval Office conversations. When the White House refused, Congress went to the courts. The Supreme Court ruled unanimously, in United States v. Nixon, that the president wasn’t above the law and had to hand over the tapes to Congress.

The recordings showed that Nixon had obstructed justice—an impeachable offense.

Impeachment is the tool the Constitution provides for removing from office a president (or other federal official) who has committed “treason, bribery, or other high crimes and misdemeanors.” It requires the House of Representatives to conduct hearings laying out the evidence and then to vote to impeach. The president is removed from office only if two-thirds of the Senate votes to convict him.

That has never happened. Two presidents have been impeached by the House—Andrew Johnson in 1868 and Bill Clinton in 1998—but both were acquitted by the Senate and remained in the White House. In Nixon’s case, once it became clear that there was enough support in Congress to remove him from office, he resigned.

“Impeachment is the nuclear weapon that Congress always has,” says John McGinnis, a law professor at Northwestern University in Illinois. “But there are dangers in using that weapon.”

The first thing to understand is that conflicts between the branches are nothing new. That includes battles like those between President Trump and Congress.

“Lawmakers and presidents have found ways to resolve these disputes in the past,” says former Senator Carl Levin, a Democrat from Michigan. “That’s not to say Congress and the White House haven’t battled over congressional inquiries.”

When they do butt heads, there are several options. The two branches may fight it out politically. That means they try to put political pressure on each other in an effort to persuade. They can also turn to the third branch for a solution.

That’s what happened during the Watergate scandal that eventually prompted President Richard Nixon to resign in 1974 (see “When Branches Clashed,” below). Congress was investigating Nixon’s involvement in a cover-up of Watergate. They asked the White House to hand over recordings of Oval Office conversations. When the White House refused, Congress went to the courts. The Supreme Court ruled unanimously, in United States v. Nixon, that the president wasn’t above the law and had to hand over the tapes to Congress.

The recordings showed that Nixon had obstructed justice. That’s an impeachable offense.

Impeachment is the tool the Constitution provides for removing from office a president (or other federal official) who has committed “treason, bribery, or other high crimes and misdemeanors.” It requires the House of Representatives to conduct hearings laying out the evidence and then to vote to impeach. The president is removed from office only if two-thirds of the Senate votes to convict him.

That has never happened. Two presidents have been impeached by the House—Andrew Johnson in 1868 and Bill Clinton in 1998. But both were acquitted by the Senate and remained in the White House. In Nixon’s case, it became clear that there was enough support in Congress to remove him from office. Before that happened, he resigned.

“Impeachment is the nuclear weapon that Congress always has,” says John McGinnis, a law professor at Northwestern University in Illinois. “But there are dangers in using that weapon.”

Chip Somodevilla/Getty Images

5. Is the system working?

The short answer is it’s too soon to tell. As the power struggle between the House of Representatives and the Trump administration escalates, we’re watching the Framers’ system of checks and balances at work.

“The current situation is a stress test on the system,” says Brettschneider of Brown University. “It’s not yet obvious whether it’s going to pass or fail.”

There are a few possible routes out of the standoff. The Trump administration could decide to cooperate with Congress on its investigations. The courts could intervene and demand that the president comply with congressional oversight committees. And the House of Representatives could decide that impeachment is its only way out of the impasse. There are risks involved with all of these avenues.

“In any separation of powers situation, there’s always a question of who’s going to win power and who’s going to lose some,” the National Constitution Center’s Gerhardt says. “Those are the stakes that are being fought over now.”

How this clash will ultimately be resolved is still unclear. But one thing is certain: The 2020 presidential election is not that far off. And some scholars suggest that if the branches don’t settle the fight, voters might wind up providing the solution.

“We can have a resolution of this in another way,” says John Fortier of the Bipartisan Policy Center, in Washington, D.C. “The people can speak. The people can decide if the president is right or Congress is right.”

The short answer is it’s too soon to tell. The power struggle between the House of Representatives and the Trump administration continues to escalate. And it’s showing the Framers’ system of checks and balances at work.

“The current situation is a stress test on the system,” says Brettschneider of Brown University. “It’s not yet obvious whether it’s going to pass or fail.”

There are a few possible routes out of the standoff. The Trump administration could decide to cooperate with Congress on its investigations. The courts could step in and demand that the president comply with congressional oversight committees. And the House of Representatives could decide that impeachment is its only way out of the impasse. There are risks involved with all of these avenues.

“In any separation of powers situation, there’s always a question of who’s going to win power and who’s going to lose some,” the National Constitution Center’s Gerhardt says. “Those are the stakes that are being fought over now.”

How this clash will ultimately be resolved is still unclear. But one thing is certain: The 2020 presidential election is not that far off. And some scholars suggest that if the branches don’t settle the fight, voters might wind up providing the solution.

“We can have a resolution of this in another way,” says John Fortier of the Bipartisan Policy Center, in Washington, D.C. “The people can speak. The people can decide if the president is right or Congress is right.”

Gary Varvel/Indinapolis Star/Creators.com

When Branches Clashed

1803
Marbury v. Madison

The Supreme Court establishes its authority by declaring, for the first time, that a law passed by Congress is unconstitutional—a power not explicitly granted to the Court by the Constitution.

The Supreme Court establishes its authority by declaring, for the first time, that a law passed by Congress is unconstitutional—a power not explicitly granted to the Court by the Constitution.

1937
FDR’s Court-Packing Attempt

Hulton Archive/Getty Images

Frustrated by the Supreme Court having declared many of his New Deal initiatives unconstitutional, President Franklin Roosevelt (right) proposes expanding the Court to 15 justices from 9. Congress rejects the plan after months of debate.

Frustrated by the Supreme Court having declared many of his New Deal initiatives unconstitutional, President Franklin Roosevelt (right) proposes expanding the Court to 15 justices from 9. Congress rejects the plan after months of debate.