checks and balances

Checks by the executive on the legislature

The president is given the power to recommend legislation to the Congress. He (or she, though no female president has yet been elected) does this formally in January of each year in what is known as the State of the Union Address. Presidents use this set-piece speech, delivered to a joint session of the House of Representatives and the Senate — as well as cabinet members and the nine justices of the Supreme Court on primetime tele­vision before a nationwide audience. It is the president's main opportunity to lay out his legislative agenda: in effect saying to Congress, 'this is what I want you to debate and pass into law'. President Obama used his State of the Union Address in 2009 to try to get Congress to write a health reform bill.

As well as requesting Congress to write Bills, presidents can send Bills to Congress even though they will still be titled 'by request'.

In addition, the president has the power to veto bills passed by Congress. During his 8 years in office, President Clinton used the veto power on 36 occasions, including his veto of the 1999 Republican tax cut. Obama vetoed 12 Bills with one (the 9/11 Bill) being overridden.

On October 15, 2019, President Donald Trump (R) vetoed A joint resolution relating to a national emergency declared by the President on February 15, 2019. The emergency declaration allowed Trump to fund the building of the boarder wall with Mexico.

Note that there are fewer checks by the executive on the legislature than by the legislature on the executive-



Checks by the executive on the judiciary


Here the president has two significant checks. First, he nominates all federal judges to the federal courts and and Supreme Court. It is the latter that are the most important. President Clinton was able to make two appointments to the Supreme Court — Ruth Bader Ginsburg (1993) and Stephen Breyer (1994). By choosing justices whose judicial philosophy matches their own, presidents can hope to mould the outlook of the Court for years to come. Obama appointded Sonia Sotomeyor and Elena Kagan. Trump appointed Neil Gorsuch and Brett Kavanaugh July 10, 2018

Second, the president has the power of pardon. This has become something of a controversy in recent times. In 1974, President Ford pardoned his predecessor —President Nixon — for any crimes that Nixon might have committed in the so-called Watergate affair. On the final day of his presidency, President Clinton pardoned 140 people, including Mark Rich, a notorious tax fugitive. Incoming President George W. Bush pointedly made no use of the power in the first 2 years of his administration. Obama pardoned Chelsea Manning.On August 25, 2017, President Donald Trump pardoned Joe Arpaio for criminal contempt of court, a misdemeanor. Arpaio had been convicted of the crime two months earlier for disobeying a federal judge's order to stop racial profiling in detaining "individuals suspected of being in the U.S. illegally.

Pardons Granted by Trump



Checks by the legislature on the executive


Because the Founding Fathers were most anxious about the possible power of the singular executive they had created — the president — they hedged this branch of government with the most checks. Congress exercises eight significant checks on the president.

Congress can amend, block or even reject items of legislation recommended by the president. In 2001, it passed — but in a significantly amended form — President Bush's Education Reform Bill. In 1993-94, President Clinton found his flagship health care reforms blocked by Congress. In 1999, Congress rejected Clinton's request for an increase in the minimum wage. 2017 the House blocked the first version of Trump's American Health Care Act.

- Congress can override the president's veto. To do this, it needs to gain a two-thirds majority in both houses of Congress. During President Clinton's two terms, Congress overrode two of his vetoes, including the one on the 1995 Securities Bill. Bush had 4 overrides and Obama 1.

Congress has the significant power that is referred to as 'the power of the purse'. All the money that the president wants to spend on his policies must be voted for by Congress. Its refusal to vote for this money will significantly curtail what the president can do — be it in domestic or foreign policy. Congress used this power to prevent the closure of Guantanamo.

In the field of foreign policy, Congress has two further checks on the president. Although the Constitution confers on the president the power to be 'commander in chief' of the armed forces, it confers on Congress the power to declare war. Although this power seems to have fallen into disuse — the last time Congress declared war was on Japan in 1941 — Congress has successfully forced presidents since then to seek specific authorisation before committing troops to situations in which hostilities are likely or inevitable. In 2003, President George Bush gained specific authorisation from Congress to launch his wars in Afghanistan and Iraq. In 2012 Congress voted against the bombing of targets in Syria. In this case Obama had sought their support even though he did not need to.

The Senate has the power to ratify treaties negotiated by the president. This requires a two-thirds majority. In 1997, the Senate ratified the Chemical Weapons Ban Treaty. Negotiated by President Bush and backed, by Clinton, the treaty was ratified by the Senate by 74 votes to 26. However, 2 years later, the Senate rejected the Comprehensive Test Ban Treaty by 48 votes to 51 — 18 votes short of the 66 votes required to ratify it. This was the first major treaty to be rejected by the Senate since the rejection of the Versailles Treaty in 1920. Five minor treaties have been rejected in between.

- The check exercised by Congress over the president is an important power held by the Senate alone — the power to confirm many of the appointments that the presi­dent makes to the executive branch and all the appointments he makes to the federal judiciary. Executive appointments subject to Senate confirmation include such high-profile posts as cabinet members, ambassadors and heads of important agencies such as the CIA and the FBI. Only a simple majority is required for confirmation. Rejections are unusual, but only because presidents usually consult informally with key Senators before announcing such appointments, naming only those for whom confirmation is a fair certainty. In 1987, the Senate rejected (42-58) President Reagan's nominee, Robert Bork, for a place on the Supreme Court (see Chapter 8). In 1989, the Senate rejected (47-53) John Tower as secretary of defense. In 1997, it refused to confirm William Weld — President Clinton's choice as ambassador to Mexico. In 1999, it rejected (45-54) Ronnie White — President Clinton's nominee to a vacancy on the United States District (trial) Court. Obama face the longest delays in confirming all his appointments and the Senate refused to even consider his nomination of Merrick Garland to the Supreme Court.

Two further important checks on the president are given to Congress. The first is the power of investigation: Congress — usually through its committees — may investigate the actions or policies of any member of the executive branch, including the president. President. George W. Bush's handling of national security issues both before and after the events of 11 September 2001 was investigated by Congress. Trump is being investigated by the Senate Intelligence Committee.

- Finally, in the most serious circumstances, investigation may lead to impeachment — the ultimate check that Congress holds over the executive. Congress may impeach (formally accuse) any member of the executive branch, including the president. Two presidents — Andrew Johnson (1868) and Bill Clinton (1998) — have been impeached by Congress. It is the House of Representatives which has the power of impeachment. In 1998, it passed two articles of impeachment against President Clinton — for perjury (228-206) and obstruction of justice (221-212). Just a simple majority is required. Once the House has impeached, the Senate then conducts the trial. If found guilty by a two-thirds majority, the accused person is removed from office. In President Clinton's case, the Senate found him not guilty on both articles of impeach­ment — the votes being 45-55 on perjury and 50-50 on obstruction of justice, respectively 22 and 17 votes short of the required two-thirds majority. In the 1860s, President Johnson escaped conviction by the Senate by just one vote. In 1974, President Nixon resigned rather than face near certain impeachment by the House and conviction by the Senate. Thus, through impeachment — what someone has described as the political equivalent of the death penalty' — Congress can remove the president. This is the ultimate check. The president holds no similar power — he cannot remove Congress.

Checks by the legislature on the judiciary

Congress has two important checks on the courts. First, there is the power of impeach­ment, trial and — if found guilty by a two-thirds majority — removal from office. In the space of 3 years (1986-89), Congress removed three federal judges from office — Harry Claiborne for tax evasion, Alcee Hastings for bribery and Walter Nixon for perjury. A more subtle but still significant check is that Congress can propose constitutional amendments to — in effect — overturn a decision of the Supreme Court. When in 1896 the Supreme Court declared federal income tax to be unconstitutional, Congress proposed the 16th Amendment granting Congress the power to levy income tax. It was ratified and became operative in 1913. Congress has more recently attempted unsuc­cessfully to reverse Supreme Court decisions on such issues as flag burning and prayer in public schools.

The Senate must also confirm appointments to the Supreme Court.

Checks by the judiciary on the legislature

The judiciary — headed by the Supreme Court — possesses one very significant power over the Congress: the power of judicial review. This is the power of the court to declare Acts of Congress to be unconstitutional and therefore null and void. In the 1997 case of Reno v. American Civil Liberties Union, the Supreme Court declared the Communications Decency Act unconstitutional. In 1998, in Clinton v. New York City, it declared the Line Item Veto Act unconstitutional. Windsor v US struck down the 1996 Defense of Marriage Act. 2020 In a 6-3 decision, the Supreme Court said federal law, which prohibits discrimination based on sex, should be understood to include sexual orientation and gender identity.The ruling is a major win for LGBT workers and their allies Bostock v Clayton County

Checks by the judiciary on the executive

The courts have the same power of judicial review over the executive branch. Here the power of judicial review is the ability to declare actions of any member of the executive branch to be unconstitutional. In Youngstown Sheet dr TUbe Company v. Sawyer (1952), the Supreme Court ordered President Truman's commerce secretary, Charles Sawyer, to remove federal troops whom he had sent into steel mills to break an industry-wide strike. In United States v. Richard Nixon (1974), the Court ordered President Nixon to hand over the so-called White House tapes and thereby stop impeding investigation of the Watergate affair. Nixon obeyed, handed over the tapes and resigned within days once the tapes showed his involvement in an intricate cover-up. 2020 President Trump’s attempt to remove deportation protections from 650,000 young, unauthorised immigrants has been declared illegal by the Supreme Court.The Supreme Court judgment said that the president’s decision to rescind the Deferred Action for Childhood Arrivals (Daca) programme in 2017 was “arbitrary and capricious”.