checks and balances

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. 

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

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 made 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 appointed Sonia Sotomayor and Elena Kagan. Trump appointed Neil Gorsuch  and Brett Kavanaugh on July 10, 2018

Second, the president has the power of pardon. This has become controversial 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

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 — Examples include: 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.

A president cannot even pass legislation without Congress' support, regardless of public opinion favoring the president. This became apparent following the 2012 Sandy Hook elementary school shooting, where 26 individuals, including 20 children, were shot and killed. Obama proposed tighter gun control measures, such as banning assault weapons. Despite most Americans backing these changes, Congress turned down the proposed legislation.

- 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 overrode only one of Trump's vetoes, occurring at the end of his term on an issue with bipartisan support. Trump's veto of the yearly defense spending bill was strongly condemned by Republican Mitch McConnell, the Senate majority leader, who noted the bill had been passed for 59 consecutive years and was crucial for the armed forces. Despite Republicans having a Senate majority, the veto was overruled by 81-13 in the Senate and 322-87 in the House.

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. If Congress refuses to pass the president’s budget, it can force a government shutdown, putting pressure on the president to agree to its demands

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. 

Who runs foreign policy, the president or Congress? 

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. Several presidential nominees have not been confirmed due to the Senate failing to consider them before the conclusion of a Congressional session. One notable case of this was Merrick Garland, President Obama's nominee for the Supreme Court. This vacancy persisted until President Trump took office in 2017 and nominated Neil Gorsuch. If Garland had been confirmed, the Supreme Court would have seen a majority of justices appointed by Democratic presidents for the first time in decades.

Appointment of Members of 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.

Oversight 

Committees in Congress 'The Engine room' 

- 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.

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. 

After the Supreme Court upheld abortion rights in Roe v. Wade (1973), Congress blocked the use of Medicaid and other federal funds to pay for abortions. Congress also offered religious organizations federal funds to promote sexual abstinence as a method of birth control Congress can pass legislation to modify the impact of prior Supreme Court decisions. Seemingly Court decisions are final. They cannot be overturned by Congress or vetoed by the president. However, Political science tells us that Congress has significant power and responsibility to respond to Supreme Court decisions on both statutory and constitutional questions. On statutory matters, Congress may negate a Supreme Court interpretation by enacting new legislation.

Case study: Congress can limit the Supreme Court. 

The Senate must also confirm appointments to the Supreme Court.

The Constitution established several mechanisms for Congress to limit the Supreme Court's authority. These include the ability to propose constitutional amendments to overturn Court decisions, the use of Congress’s exceptions clause to remove the Court's jurisdiction over specific types of appeals, the impeachment of judges, and the power to modify the size of the Court, thereby changing its composition. Enacting constitutional amendments is a challenging process. In U.S. history, amendments have successfully overturned a Supreme Court ruling only four times. In 2012, President Obama advocated for a constitutional amendment to counter the 2010 Supreme Court decision in Citizens United v. Federal Elections Commission, which determined that the First Amendment's free speech clause prevents the government from restricting corporate and union spending on election-related communications. During his 2010 State of the Union address, President Obama remarked, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” Opposition to this ruling persists. In May 2019, Rep. Adam Schiff (D-CA) proposed a constitutional amendment to overturn Citizens United, stating, “Amending the Constitution is an extraordinary step, but it is the only way to safeguard our democratic process against the threat of unrestrained and anonymous spending by wealthy individuals and corporations.” However, based on historical precedent, the chances of such an amendment passing are minimal.

 Another means of limiting the Court is through the Constitution’s exceptions clause, which allows Congress to exclude certain types of cases from the Supreme Court's defined appellate jurisdiction. The use of this power to restrict the Court's ability to hear appeals in specific cases is quite uncommon and often controversial. If misused, it could potentially violate fundamental rights by eliminating avenues for appeal. Because the exceptions clause does not specify a limit on the number of exceptions Congress may create, it is conceivable that excessive withdrawal of appellate jurisdiction could undermine the Supreme Court's primary function—its capacity to review lower court decisions. Some legal scholars argue that such extreme application of the exceptions clause could breach the separation of powers, though this issue has never been confronted. Most attempts to withdraw jurisdiction have been unsuccessful, but the Supreme Court confirmed the constitutionality of such withdrawals in an 1869 case, where Congress revoked the Court’s authority to review habeas corpus appeals. Congress also holds the power to impeach Supreme Court justices and other federal judges, but this process is complex and rarely employed.

 The only Supreme Court justice impeached by the House of Representatives, Samuel Chase in 1804, was acquitted by the Senate and continued to serve. In the entire history of the United States, only fourteen federal judges have been impeached by the House, with only seven removed following a Senate trial, while four were acquitted and three resigned before the trial's conclusion. 

Lastly, Congress has the authority to change the size of the Supreme Court, which could allow for the appointment of new justices who might reverse previous decisions. Since 1869, the size of the Supreme Court has remained unchanged. President Franklin Roosevelt proposed expanding the Court in 1937, but his suggestion was perceived as politically motivated, and Congress did not act on it. Although these constitutional checks are infrequently utilized, their mere existence may serve as a deterrent influencing the Court’s decisions.

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”.

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

Noncompliance

The Supreme Court has neither purse nor sword' Federalist No. 78  

'The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.'

 It is crucial to recognize that the Supreme Court relies on other institutions to enforce its decisions. When the Court, in a ruling authored by Chief Justice John Marshall, declared that the Cherokee Indians in Georgia had tribal sovereignty, President Andrew Jackson reportedly remarked, “John Marshall has made his decision; now let him enforce it.” The Supreme Court issues rulings, but the actual execution of those rulings is assigned to various entities. For instance, the Court may determine that state-sponsored prayer in public schools is unconstitutional, but the enforcement of that decision hinges on the cooperation of numerous stakeholders, including school administrators and educators. Whether through overt acts of defiance—like Roy Moore, the former Chief Justice of the Alabama Supreme Court, resisting a federal court order to remove a massive granite monument to the Ten Commandments he had placed in the state judicial building's rotunda, or Governor Orval Faubus of Arkansas obstructing school desegregation mandated by the Supreme Court in Brown v. Board of Education— or through more subtle failures to implement court decisions, noncompliance with Supreme Court rulings occurs more frequently than expected. While such noncompliance can be addressed (as seen when Moore was ousted from his position and President Eisenhower deployed the National Guard to enforce school desegregation), it cannot be corrected by the Supreme Court itself.