David Adler

David Adler

The framers separated governmental powers — legislative, executive and judicial—to avoid the concentration of power in the hands of a single department which, they believed, would constitute the very definition of power.

The scheme of separation, however, required for its own effectiveness what James Madison called, “a partial mixture” of powers and a partial control of one branch by another. This mixture of powers is embodied in the doctrine of checks and balances. While not as well known among the public as the doctrine of separation of powers, it is, in fact, the workhorse of the Constitution. In theory, it maintains the constitutional allocation of powers ratified by the American people at the time of the framing.

This defining doctrine also reflects the framers’ belief that no significant governmental power should be exercised “unilaterally,” that is, by a single department, but should be shared, not only to protect against concentration of authority and its abuse, but the better to promote the welfare of the nation on the republican premise that the collective wisdom of the many is superior to the judgment of one official or department.

In Federalist Paper No. 48, Madison explained that, “unless these departments be so far connected and blended, as to give each a constitutional control over the others, the degree of separation which the maxim requires as essential to a free government, can never in practice be duly maintained.”

What are the checks and balances that disturb what might be viewed as a pristine symmetry of separation of powers that the framers regarded as essential to avoiding the concentration of governmental power?

The most recognizable feature is the division of power between the two houses of Congress. Bicameralism serves a number of purposes, but it is an internal check on Congress. The House of Representatives and the Senate, for example, check one another in agreement on appropriations in what should be an annual budget, and in the enactment of bills en route to becoming law.

The chief presidential check on Congress is the authority to veto bills, although the veto power is subject to the override authority of Congress, if a two-thirds majority can be mustered in each house.

The primary constitutional power of Congress to check the president can be seen in the impeachment provisions of the Constitution. Thus, the House possesses the authority to impeach the president for what it considers offenses that rock the foundation of the nation, and the Senate has the power to remove the president from office and impose the additional penalty of disqualification from holding another office in the future.

The federal judiciary has the power to check Congress through the exercise of judicial review of national laws, which was not stated in the Constitution, but was inferred from the powers assigned to the courts. The judiciary, in turn, is checked by the president and the Senate through exercise of the authority to nominate, and confirm, nominees to federal judgeships, including the U.S. Supreme Court. The congressional power of impeachment also extends to federal judges. And, Congress was granted the constitutional authority to regulate the jurisdiction of the judiciary — the power to hear or entertain cases — except for its original jurisdictional jurisdiction, which is conferred by Article III of the Constitution.

The “partial mixture” of governmental powers effected by the doctrine of checks and balances also applies to the allocation of foreign affairs and national security powers. The treaty-making power is shared by the president and the Senate, with the requirement under Article II, section 2, that no treaty can become law of the land without concurrence of two-thirds of the Senators present. The authority to regulate foreign commerce is likewise shared, by Congress and the president. The power to appoint ambassadors is shared by the president and the Senate.

The War Power, that is, the constitutional authority to declare or otherwise authorize war or military hostilities against a foreign nation is the principal preserve of Congress, although the president, in his capacity as Commander in Chief of the armed forces, conducts the war effort. Yet, the president remains subject to the authority of Congress, which, the Supreme Court ruled in 1804 in Little v. Barreme, may impose directions and instructions on the president in the prosecution of the war.

Additional checks and balances permeate our constitutional system. Their implementation requires men and women of integrity, determined to defend the Constitution.

David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. His scholarly writings have been cited by the US Supreme Court and lower courts by both Democrats and Republicans in the US Congress. He can be reached at david.adler@alturasinstitute.com

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