H WHAT YOU NEED TO KNOW ABOUT H

NATIONAL

Checks &
Balances
The standoff between Congress and the Trump administration

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is intensifying. Is the Framers’ plan for a separation
of powers playing out as they envisioned? BY PATRICIA SMITH

L
ately, it seems as if the federal government is at war
1. Why did the Framers

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with itself. The House of Representatives has been
investigating the White House. Lawmakers have
create checks and balances?
threatened to impeach President Trump over the There weren’t a lot of functioning democracies to use
findings in the Mueller Report. Earlier in the year,   as examples when the Framers met in 1787 to write
the president vetoed a congressional resolution that would the Constitution. Many of them had read the political
have prevented him from building his wall on the U.S.- philosophers of the time and drew on their ideas. They took
Mexico border without Congress’s approval. And a battle what they liked from the British system. They borrowed
over one of Trump’s appointees to the Supreme Court,   from state governments. And they improvised.
Brett Kavanaugh, was among the nastiest in memory. “What they came up with was what they thought
House Speaker Nancy Pelosi has gone so far as to say was the best of all worlds,” says Corey Brettschneider,
that the nation is mired in a “constitutional crisis” over a political science professor at Brown University. “The
the president’s blanket refusal to cooperate with checks are meant to be a way for all the branches to
congressional investigations. Trump has responded by MARCH 4,
be accountable to the rule of law and the people,
vowing not to work with Democrats in Congress on 1789 without any one branch being able to take over.”
any legislation until the investigations end. Date the new federal The Articles of Confederation were the new
What’s going on? Experts say it’s a government began operating, nation’s first constitution. But they were
after ratification of the
particularly heated showdown. And it’s one that U.S. Constitution too weak to effectively bind the United States
involves America’s system of checks and balances. the previous together. Scholars say that was the reason for
The Framers spread power among the three federal year. the Constitutional Convention in Philadelphia. The
branches—executive, legislative, and judicial. They gave Framers understood that the nation needed an executive
each branch the ability to curb, or check, the power of the with some authority to act on matters of national importance.
other two. In many cases, the system works without much fuss. But lurking in the back of their minds was the experience of
An example is when Congress approves a president’s Cabinet being ruled by a tyrant, Britain’s King George III. They had
nominee. At other times in American history, two branches fought a revolution to get rid of the king. That made them
have dug in their heels and fought over their respective powers. hesitant to put too much power into the hands of a president.
“We’ve had some challenges in the past, and the system “The big innovation of the Founders is that you divide
responded appropriately,” says Norman Ornstein, a scholar   power,” says David Azerrad, a political expert at the
at the American Enterprise Institute, a conservative think Heritage Foundation in Washington, D.C. “You don’t put
tank in Washington, D.C. “But I think we’re at a time of all the power in one place, and you give the branches some
enormous and important testing of the system.” control over one another. The underlying premise is that
Here’s what you need to know about checks and balances, each branch is going to be [protective] of its power and will
and how they might come into play in the year ahead. check the others.”

10   U P F R O N T   •   U P F R O N T M AGA Z I N E .CO M

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EXECUTIVE BRANCH
Enforces Laws
The president is elected to a
four-year term and can serve
no more than two terms.

LEGISLATIVE BRANCH JUDICIAL BRANCH

Makes Laws Evaluates Laws
435 representatives in the House The Supreme Court has nine
serve two-year terms. justices who are appointed
100 senators (two from each by the president and can
state) serve six-year terms. serve for life.

2. What does each branch do?

In a nutshell, the legislative branch The president appoints federal order and bypass Congress. But the
makes the laws, the executive branch judges, including Supreme Court courts can rule that he’s overstepped
enforces the laws, and the judicial justices. But the Senate has to confirm his authority and block it.
branch evaluates the laws. those choices, a power known as Congress also provides oversight of
The three branches of the federal advice and consent. Advice and the federal government. They oversee
government are designed to work consent also gives the Senate the everything from the military and
together. But they also exist to limit authority to approve any treaties the the Internal Revenue Service to the
one another. Congress passes laws, but president agrees to with other nations. operation of the White House itself.
the president can veto bills passed by The federal courts can rule whether In fact, Ronald Weich, dean of the
Congress. If that happens, it prevents laws approved by Congress and signed University of Baltimore School of Law,
laws from taking effect. But a veto by the president are unconstitutional. But says oversight is “a core constitutional
can be overridden if two-thirds of those same courts are appointed by the function, a cornerstone of the
lawmakers in both the House and the president, subject to Senate approval. structural checks and balances on
Senate vote to do so. The president can issue an executive which our federal government is built.”

SEPTEMBER 2, 2019  11
 4. What
 happens if
there’s a conflict?
The first thing to understand is that conflicts between
the branches are nothing new. That includes battles like
those between President Trump and Congress.
“Lawmakers and presidents have found ways to resolve
these disputes in the past,” says former Senator Carl Levin, a
Democrat from Michigan. “That’s not to say Congress and the
White House haven’t battled over congressional inquiries.”
Political parties have complicated relations between the three branches.
When they do butt heads, there are several options. The

3. H
 ow has the checks and two branches may fight it out politically. That means they try
to put political pressure on each other in an effort to persuade.
balances system evolved? They can also turn to the third branch for a solution.
It’s changed a lot. Experts say that has to do with the rise That’s what happened during the Watergate scandal that
of political parties and with the expanding role of the federal eventually prompted President Richard Nixon to resign in
government—and the powers of the presidency in particular. 1974 (see “When Branches Clashed,” below). Congress was

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The Framers didn’t like the idea of political parties. They investigating Nixon’s involvement in a cover-up of Watergate.
were wary of what they called “factions” creating divisions They asked the White House to hand over recordings of Oval
in the government. Despite this fear, parties Office conversations. When the White House
became part of America’s political landscape. For the refused, Congress went to the courts. The Supreme
And they took root very early on, while George first 75 to Court ruled unanimously, in United States v.
Washington was still president. Nixon, that the president wasn’t above the law
“Today, parties are essential for things to
100 years, and had to hand over the tapes to Congress.
advance politically, and that complicates the the federal The recordings showed that Nixon had
original design,” says Michael Gerhardt, government obstructed justice. That’s an impeachable offense.
a scholar at the National Constitution Center
did little. Impeachment is the tool the Constitution
in Philadelphia. “The rise of political parties provides for removing from office a president (or
increases the opportunity and motivation for conflict.” other federal official) who has committed “treason, bribery, or
The other big change is how powerful the government other high crimes and misdemeanors.” It requires the House
has become. For the first 75 to 100 years of America’s of Representatives to conduct hearings laying out the evidence
history, the federal government did little. and then to vote to impeach. The president is removed from
“What we think of as national power is really a creation office only if two-thirds of the Senate votes to convict him.
of the late 19th and early 20th centuries,” says Sanford That has never happened. Two presidents have been
Levinson of the University of Texas Law School. impeached by the House—Andrew Johnson in 1868 and
The federal government took on a larger role in providing Bill Clinton in 1998. But both were acquitted by the Senate
protections and services for citizens. That included and remained in the White House. In Nixon’s case, it
everything from keeping food safe to old-age pensions. The became clear that there was enough support in Congress to
presidency inevitably became more powerful in order to carry remove him from office. Before that happened, he resigned.
out those added functions. In effect, scholars say, Congress “Impeachment is the nuclear weapon that Congress
has delegated many of its responsibilities to the executive always has,” says John McGinnis, a law professor at
branch over the years. They say that has tipped the balance Northwestern University in Illinois. “But there are dangers
of power among the branches in favor of the executive. in using that weapon.”

WHEN BRANCHES CLASHED

1803 1937 FDR’s 1973 War Powers Act 1974 Watergate
Marbury v. Madison Court-Packing Attempt As the Vietnam War—which Congress President Richard Nixon
The Supreme Court establishes its Frustrated by the Supreme Court never officially declared—is winding (right) resigns under threat of
authority by declaring, for the first having declared many of his New Deal down, Congress passes this legislation impeachment after an investigation
time, that a law passed by initiatives unconstitutional, President to limit the president’s power to get the into a burglary at Democratic Party
Congress is unconstitutional— Franklin Roosevelt (left) proposes U.S. involved in armed conflicts without offices in the Watergate complex in
a power not explicitly expanding the Court to 15 Congress’s approval. Scholars say it Washington, D.C., revealed abuses of
granted to the Court justices from 9. Congress rejects hasn’t worked as intended, as most power by the Nixon administration and
by the Constitution. the plan after months of debate. presidents have found ways around it. attempts to cover up wrongdoing.

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 The Supreme Court
The nine justices on the nation’s highest court could be called upon to decide
how a power struggle between Congress and the president plays out.

Sonia Sotomayor Elena Kagan

Appointed by Appointed by
Barack Obama in 2009 Barack Obama in 2010
Neil Gorsuch Brett Kavanaugh
Leans liberal Leans liberal
Appointed by Appointed by
Donald Trump in 2017 Donald Trump in 2018
Leans conservative Leans conservative

Stephen Breyer Clarence Thomas Chief Justice Ruth Bader Ginsburg Samuel Alito
Appointed by Appointed by John Roberts Appointed by Appointed by
Bill Clinton in 1994 George H.W. Bush in 1991 Appointed by Bill Clinton in 1993 George W. Bush in 2006
Leans liberal Leans conservative George W. Bush in 2005 Leans liberal Leans conservative
Leans conservative

5. I s the system
working?
The short answer is it’s too soon to tell.
The power struggle between the House of
Representatives and the Trump administration
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continues to escalate. And it’s showing the

Framers’ system of checks and balances at work.
“The current situation is a stress test on
the system,” says Brettschneider of Brown
University. “It’s not yet obvious whether it’s
going to pass or fail.”
There are a few possible routes out of the
standoff. The Trump administration could decide
to cooperate with Congress on its investigations.
The courts could step in and demand that the
president comply with congressional oversight One cartoonist’s take (from 2013) on the state of checks and balances. Do you agree?
committees. And the House of Representatives
could decide that impeachment is its only way out of the one thing is certain: The 2020 presidential election is not that
impasse. There are risks involved with all of these avenues. far off. And some scholars suggest that if the branches don’t
“In any separation of powers situation, there’s always settle the fight, voters might wind up providing the solution.
a question of who’s going to win power and who’s going to “We can have a resolution of this in another way,” says
lose some,” the National Constitution Center’s Gerhardt says. John Fortier of the Bipartisan Policy Center, in Washington,
“Those are the stakes that are being fought over now.” D.C. “The people can speak. The people can decide if the
How this clash will ultimately be resolved is still unclear. But president is right or Congress is right.” •

SEPTEMBER 2, 2019  13