What are the checks and balances in the Constitution? What does it entail? How does it work?
According to experts, here are some examples of checks and balances in the Constitution:
Author | Founder, The Constitution Study
First, the first three articles of the Constitution establish the three branches of government.
A quick look at those articles and the powers they delegate to the different branches show the obvious checks and balances the framers built into the Constitution.
Most of the powers delegated to the United States are delegated to Congress
Constitutionally, the President has very few powers that can be exercised without the assistance of Congress.
- For example, while the President is the Commander in Chief of the Army and Navy (Article II, Section 2), it is Congress that sets the rules for the military (Article I, Section 8).
- While the President can make treaties, he can only do so with the advice and consent of the Senate (Article II, Section 2).
- Furthermore, the Congress regulates the value of foreign currency and commerce with foreign nations (Article I, Section 8).
- The President can appoint ambassadors, public ministers, and judges, again, only with the advice and consent of the Senate (Article II, Section 2).
In short, the Constitution establishes the legislative branch as the maker of law and policy and the executive branch to execute those laws and policies.
Since neither branch is directly subject to the other, they both have the responsibility to exercise their roles within the bounds of the Constitution.
This means that if the President acts outside of his legitimate powers, Congress can either change the laws, remove funding, or, if necessary, remove the President. It also means that if Congress passes an unconstitutional law, the President can decide not to execute it as a violation of his oath of office (Article I, Section 1).
You may have noticed that I haven’t discussed the federal judiciary yet. That is because the only power they have is “judicial power.”
Noah Webster defined it in his 1828 dictionary:
“JUDICIARY, noun. That branch of government which is concerned in the trial and determination of controversies between parties, and of criminal prosecutions.”
Alexander Hamilton in Federalist Papers #78 noted:
“Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.”
So while the power struggle within the federal government is mainly between the legislative and executive branches, the judicial branch is to offer judgments in any controversies that arise.
The Tenth Amendment
The second primary example of checks and balances in the Constitution is the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The federal government has a limited set of specifically enumerated powers. All other powers are retained either by the states or the people.
It is the responsibility of the states and the people to ensure that the federal government only acts within the powers delegated to it by the Constitution.
By failing to do so, we have allowed the federal government to grow far beyond its legitimate responsibilities and effectively rule over the nation rather than serve it.
William S. Bike
Historian and Political Scientist | Author, “Winning Political Campaigns: A Comprehensive Guide to Electoral Success“
The Founders did their best to create as many checks and balances as possible in the Constitution. Problems come in because they just couldn’t have anticipated some behaviors.
In other cases, 230 years of the republic have allowed politicians to figure out ways to countermand these checks and balances.
The Congressional Power of Impeachment should have been an impediment to Presidential misbehavior, but the Founders failed to anticipate political parties and that party members would refuse to go along with the impeachment of a President from their own party.
Impeachment worked as the Founders intended in the case of Richard Nixon, when both Democrats and every Republican in the House except for one; said they would vote for Nixon’s impeachment, and a majority of Senate Republicans said they would vote with the Democrats to convict.
But it didn’t work in the cases of Bill Clinton and Donald Trump when members of those Presidents’ parties simply refused to vote to impeach or convict the President.
The Founders also didn’t anticipate that members of Congress would employ impeachment, which was supposed to be rare and serious, as a spurious way of scoring political points.
Mere days after Joe Biden became President, Rep. Marjorie Taylor Greene introduced a resolution to impeach him.
If the Republicans take the House next term, expect impeachment resolutions regarding Biden and Vice President Harris immediately—without cause and just for GOP fun.
The Founders gave the power to declare war to the Congress. They didn’t anticipate that the Congress would just abandon this power to the President—but that’s what Congress has done since the Korean War, making World War II the last declared war that followed Congressional checks and balances.
President George W. Bush could easily have gotten an old-fashioned formal declaration of war from Congress after the September 11 attacks, but he didn’t bother.
He sought a Congressional resolution of approval but no declaration of war. Another check and balance countermanded by lack of anticipation and by time providing a lesson on how to abrogate it.
Advice and consent
Senate approval of judges and cabinet members was a check and balance on the President that worked for over 200 years, but then, modern politicians decided it was just another way to score points.
So now, we often see members of the opposite party voting against Presidential nominees just to embarrass or belittle the President.
Senate Republicans in 2016 even figured out a new way to stymie the President: By refusing to call a vote on a Presidential nominee for the Supreme Court at all, and some of them even said that if Hillary Clinton had become President, they would not call a vote for any of her Supreme Court nominees, period.
So the Constitution’s checks and balances only work if both parties are in consensus to abide by them. That consensus is gone, and the fallback modus operandi is not cooperation but conflict.
The Constitution’s checks and balances are rendered meaningless if nobody believes in them and if everybody is trying to find a way around them. That is the case today.
Alain L. Sanders
Associate Professor Emeritus (Department of Political Science), Saint Peter’s University
The most important checks and balances that affect the day-to-day workings of our Constitutional system are the ones that direct by whom national government officials are to be elected.
Three types of elected officials
Our system sets up three types of national elected officials:
- The president
These officials owe their election and political survival to different constituencies, each with its own political, social, and economic needs and interest.
The entire nation elects the president, senators are elected from large political units called states, and representatives are elected from local units called congressional districts.
Different vantage points
The view from each of these vantage points can be, and frequently is, very different.
The president typically assesses issues from a national viewpoint. What matters to the president is how a decision will affect the whole country or large regions or populations of the country.
Senators look at issues from the vantage point of their respective states and people. And representatives assess matters based on how they will affect their local communities.
- What may benefit one state or one local community may not benefit other states or local communities.
- What may benefit some states and local communities may not benefit the nation as a whole.
- What may benefit the entire country may not benefit certain states or local communities.
The checks and balances calculus
Since it takes the combined assent of a majority of representatives, a majority of senators, plus the approval of the president to enact a national law—each official assessing and reaching decisions based on a different political calculus—the inevitable result will be two-fold.
Many laws will simply not be passed, no matter how objectively meritorious they may or may not be. And most laws that do pass will result from compromise, often at the lowest political common denominator that meets the approval of the House of Representatives, the Senate, and the president.
This checks and balances system creates a slow and deliberative process intended to protect the country from hasty and ill-advised decisions, as well as from policies that do not meet with the approval of large swaths of the American people.
The process, however, can also paralyze the country from addressing meaningfully and comprehensively national problems that require prompt attention and solutions.
David Reischer, Esq.
Attorney and CEO, LegalAdvice
Judicial review: It permits American courts to strike down laws deemed to violate the US Constitution
Judicial review in the United States provides a system of checks and balances on the Legislative and Executive branches of America. It permits American courts the power to strike down laws and statutes that are deemed to violate the Constitution of the United States.
Judicial review as a concept means that the actions of the Legislative and Executive branches of government are subject to review and possible invalidation by the judiciary.
The concept of judicial review finds its origins in the famous case ‘Marbury v Madison’ from 1803. This case was an important and landmark U.S. Supreme Court decision that, for the first time, established the notion that federal courts have the legal authority to overturn an act of Congress on the ground that it violated the U.S. Constitution.
The three branches of our Federal Government are built to depend on and regulate each other
I have built my political network with the desire to add more personal granular oversight to our legislator’s activities which would go hand in hand with the checks and balances placed in the Constitution by our founding fathers.
The foundation of our federal government is built on three branches: legislative, judicial, and executive. Alone, none of them can add to the list of laws, but they all influence what is added to the list of laws.
The least powerful individuals amongst all three branches are also the only ones the Constitution grants the power of deciding which bills should be considered for adding to the list of laws.
The rein on power this branch has is rooted in the number of co-legislators required to move the needle in adding to the list of laws.
Each of these individuals represents their own collection of citizens with a focused interest, and the Constitution brings all these interests together for exchange in the legislative branch.
This requirement of consensus makes it unlikely a single interest can make it to the next step without vetting, or in most cases of our modern legislative process, additional interests being promoted in exchange for the initial proposal.
The most power to an individual is granted to the executive branch. Although this person does not directly propose what should be considered to add to the list of laws, they have the easiest, and ultimately less powerful, time making a final say on whether a law gets added to the list or not.
The more powerful final say is from the legislative branch, and it is more difficult to come by since it requires an even broader consensus than was initially required to get to the point of asking the executive to add the bill to the list of laws.
The final branch remaining is the judicial branch, which is dedicated solely to regulating power. This power of the individuals in the judicial branch is more concentrated than in the legislative branch, yet the branch is designed to require a collective consensus before a decision is official.
Power is executed when either of the previous two branches has their final say in the process of making a bill a law, but that final say is always open to come under question by the judicial branch.
There are three layers of power in the judicial branch found in the three levels of courts. A final say in the judicial branch always overrides the legislative and executive branches, but many final says can be had in the judicial branch, with The Supreme Court having the most powerful one and thereby being the closest guardian of the Constitution.
The beauty of the three branches that uphold our Federal Government is that they are built to depend on and regulate each other.
The distribution of power amongst the three and the further division of power within them has protected our freedom from individuals who seek to destroy freedom for unfathomable reasons.
The distribution of power results in longer times for a law to be added to the list, which protects us from the whipsaw of human nature. When exercised correctly, we, the people, live in freedom and liberty.
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