Topic 24: Separation of Powers: Check and

Balances

The system of checks and balances in government was

developed to ensure that no one branch of government would
become too powerful. The framers of the U.S. Constitution built
a system that divides power between the three branches of the
U.S. government—legislative, executive and judicial—and
includes various limits and controls on the powers of each
branch.
Separation of Powers
The idea that a just and fair government must divide power
between various branches did not originate at the, but has
deep philosophical and historical roots.
In his analysis of the government of Ancient Rome, the Greek
statesman and historian Polybius identified it as a “mixed”
regime with three branches: monarchy (the consul, or chief
magistrate), aristocracy (the Senate) and democracy (the
people). These concepts greatly influenced later ideas about
separation of powers being crucial to a well-functioning
government.
Centuries later, the Enlightenment philosopher Baron de
Montesquieu wrote of despotism as the primary threat in any
government. In his famous work “The Spirit of the Laws,”
Montesquieu argued that the best way to prevent this was
through a separation of powers, in which different bodies of
government exercised legislative, executive and judicial power,
with all these bodies subject to the rule of law.
The U.S. System of Checks and Balances
Building on the ideas of Polybius, Montesquieu, William
Blackstone, John Locke and other philosophers and political
scientists over the centuries, the framers of the U.S.
Constitution divided the powers and responsibilities of the new
federal government among three branches: the legislative
branch, the executive branch and the judicial branch.
In addition to this separation of powers, the framers built a
system of checks and balances designed to guard against
tyranny by ensuring that no branch would grab too much
power.
“If men were angels, no government would be necessary,”
James Madison wrote in the Federalist Papers, of the necessity
for checks and balances. “In framing a government which is to
be administered by men over men, the great difficulty is this:
You must first enable the government to control the governed;
and in the next place, oblige it to control itself.”
Checks and Balances Examples
Checks and balances operate throughout the U.S. government,
as each branch exercises certain powers that can be checked by
the powers given to the other two branches.
• The president (head of the executive branch) serves as
commander in chief of the military forces, but Congress
(legislative branch) appropriates funds for the military and
votes to declare war. In addition, the Senate must ratify any
peace treaties.
• Congress has the power of the purse, as it controls the money
used to fund any executive actions.
• The president nominates federal officials, but the Senate
confirms those nominations.
• Within the legislative branch, each house of Congress serves
as a check on possible abuses of power by the other. Both the
House of Representatives and the Senate have to pass a bill in
the same form for it to become law.
• Veto power. Once Congress has passed a bill, the president
has the power to veto that bill. In turn, Congress can override a
regular presidential veto by a two-thirds vote of both houses.
• The Supreme Court and other federal courts (judicial branch)
can declare laws or presidential actions unconstitutional, in a
process known as judicial review.
• In turn, the president checks the judiciary through the power
of appointment, which can be used to change the direction of
the federal courts
• By passing amendments to the Constitution, Congress can
effectively check the decisions of the Supreme Court.
• Congress (considered the branch of government closest to
the people) can impeach both members of the executive and
judicial branches.
Checks and Balances in Action
The system of checks and balances has been tested numerous
times throughout the centuries since the Constitution was
ratified.
In particular, the power of the executive branch has expanded
greatly since the 19th century, disrupting the initial balance
intended by the framers. Presidential vetoes—and
congressional overrides of those vetoes—tend to fuel
controversy, as do congressional rejections of presidential
appointments and judicial rulings against legislative or
executive actions. The increasing use of executive orders
(official directives issued by the president to federal agencies
without going through Congress) are another examples of the
increasing power of the executive branch. Executive orders are
not directly provided for in the U.S. Constitution, but rather
implied by Article II, which states that the president “shall take
Care that the Laws be faithfully executed.” Executive orders can
only push through policy changes; they cannot create new laws
or appropriate funds from the United States treasury.
Overall, the system of checks and balances has functioned as it
was intended, ensuring that the three branches operate in
balance with one another.
Roosevelt and the Supreme Court

A political cartoon that was captioned ‘Do We Want A

Ventriloquist Act In The Supreme Court?’ The cartoon, a
criticism of FDR’s New Deal, depicts President Franklin D.
Roosevelt with six new judges likely to be FDR puppets, circa
1937.

The checks and balances system withstood one of its greatest

challenges in 1937, thanks to an audacious attempt by Franklin
D. Roosevelt to pack the Supreme Court with liberal justices.
After winning reelection to his second term in office by a huge
margin in 1936, FDR nonetheless faced the possibility that
judicial review would undo many of his major policy
achievements.
From 1935-36, a conservative majority on the Court struck
down more significant acts of Congress than any other time in
U.S. history, including a key piece of the National Recovery
Administration, the centerpiece of FDR’s New Deal.
In February 1937, Roosevelt asked Congress to empower him to
appoint an additional justice for any member of the Court over
70 years of age who did not retire, a move that could expand
the Court to as many as 15 justices.
Roosevelt’s proposal provoked the greatest battle to date
among the three branches of government, and a number of
Supreme Court justices considered resigning en masse in
protest if the plan went through.
In the end, Chief Justice Charles Evans Hughes wrote an
influential open letter to the Senate against the proposal; in
addition, one older justice resigned, allowing FDR to replace
him and shift the balance on the Court. The nation had
narrowly averted a constitutional crisis, with the system of
checks and balances left shaken but intact.

The War Powers Act and Presidential Veto

The United States Congress passed the War Powers Act on
November 7, 1973, overriding an earlier veto by President
Richard M. Nixon, who called it an “unconstitutional and
dangerous” check on his duties as commander-in-chief of the
military. The War Powers Act, created in the wake of the
Korean War and during the controversial Vietnam War,
stipulates that the president has to consult with Congress when
deploying American troops. If, after 60 days, the legislature
does not authorize the use of U.S. forces or provide a
declaration of war, the soldiers must be sent home.
The War Powers Act was put forth by the legislature to check
the mounting war powers exercised by the White House. After
all, President Harry S. Truman had committed U.S. troops to the
Korean War as part of a United Nations “police action.”
Presidents Kennedy, Johnson and Nixon each escalated the
undeclared conflict during the Vietnam War.
Controversy over the War Powers Act continued after its
passage. President Ronald Reagan deployed military personnel
to El Salvador in 1981 without consulting or submitting a report
to Congress. President Bill Clinton continued a bombing
campaign in Kosovo beyond the 60-day time in 1999. And in
2011, President Barack Obama initiated a military action in
Libya without congressional authorization. In 1995, the U.S.
House of Representatives voted on an amendment that would
have repealed many of the Act’s components. It was narrowly
defeated.

State of Emergency
The first state of emergency was declared by President Harry
Truman on December 16, 1950 during the Korean War.
Congress did not pass The National Emergencies Act until 1976,
formally granting congress checks on the power of the
president to declare National Emergencies. Created in the wake
of the Watergate scandal, the National Emergencies Act
included several limits on presidential power, including having
states of emergency lapse after a year unless they are renewed.
Presidents have declared almost 60 national emergencies since
1976, and can claim emergency powers over everything from
land use and the military to public health. They can only be
stopped if both houses of the U.S. government vote to veto it
or if the matter is brought to the courts.
Recent declarations include President Donald Trump’s February
15, 2019 State of Emergency to obtain funding for a border wall
with Mexico, in which he wrote: “The current situation at the
southern border presents a border security and humanitarian
crisis that threatens core national security interests and
constitutes a national emergency.”