Lecture 8 Check & Balances Flashcards
Legislative Branch by the Executive Branch
• Congress enacts laws, but its law-making power can be blocked by the President
• The President exerts power over the legislative branch in two ways—one formal and one practical.
• The formal way is by the President’s veto power.
o Legislation must be approved by a majority of both houses of Congress and signed into law by the President; a refusal to sign, blocks the legislation from becoming law
• The practical limitation on the legislative branch is through the President’s discretion in interpreting what a law requires him to do and in deciding how enthusiastically he does it
• In his term in office, often President Obama circumvented Congress through Executive Orders and Executive Agreements; now critics say President Trump is doing the same thing
o Are such actions constitutional?
Executive Branch by the Legislative Branch
• The legislative branch exerts power over the executive branch in two ways—one formal and one practical
• The formal way is through Congress’ power to override a presidential veto
o A vote of 2/3rds of both houses of Congress is required
o If this vote is obtained, the statute becomes law despite the President’s opposition
• The practical way Congress exerts control over the President is by its power to appropriate money
o If Congress does not like a President’s exercise of power, but cannot override a presidential veto, Congress can refuse to provide money (see Art. I, §7)
o an example: regulations issued by an administrative agency cannot be implemented without funding
Legislative and Executive Branches by the Judicial Branch
• The “check” by the judicial branch is its power to declare laws passed by Congress or actions taken by the President to be unconstitutional
• This check is not explicitly mentioned in the Constitution.
o The Supreme Court itself inferred this power in Marbury v. Madison
Judicial Branch by the Executive Branch
• The executive branch exerts power over the judicial branch through the President’s power to appoint judges
o Most presidents have the opportunity to appoint one or more Supreme Court justices and perhaps many lower federal court judges, and each President tries to nominate people who share his political views
But nominees don’t always perform as anticipated
Judicial Branch by the Legislative Branch
• The most direct check on the power of judicial review is the power of the legislature to amend the Constitution
o The effect is to make constitutional whatever law or action a court had previously declared to be unconstitutional
o Amending the Constitution is difficult; it requires the approval of 3/4th of the States
• The legislative branch also exerts power over the judicial branch by the Constitution’s requirement that nominees to the Supreme Court are subject to the “advice and consent” of the Senate
o Some nominees have been denied “consent;” others have withdrawn from the process due to the partisan nature of the process
o This is also a check on the executive branch’s appointment power
20 & 21 century development in judicial branch
• Expansion of Judicial Power
• Judicial power has expanded through the increased exercise of judicial review by “activist” courts
o When courts invalidate federal laws, they impact the separation of powers among the branches
o When courts invalidate state laws, they impact the division of powers of federalism
• The power of judicial review has been criticized under the term “judicial activism”
• This criticism sees judicial invalidation of laws as an anti-democratic infringement on the decisions of the duly elected members of Congress and the President
• The criticism most often arises in issues that are politically divisive
• “Judicial activism” raises important questions about the proper role of the judiciary
• Should the courts:
o Act to validate majoritarian values
o Act as a counter-majoritarian force
20& 21 century development in executive branch
• Expansion of Executive Power
• Three reasons for expansion of executive power
o Increased U.S. involvement in international affairs, where the President has institutional advantages over Congress
o Increased expectation that the President will propose a legislative agenda
o Increased delegation of power by Congress
• What is “delegation of power” by Congress?
o Congress has authorized the President to establish administrative agencies and to use them to give specific content to broadly stated legislation
o The specific content is supplied by administrative regulations, is enforced by administrative investigations, and disputes are resolved by administrative adjudication
• Why does Congress delegate power?
o The complexity of life in the contemporary world means that Congress has neither the time nor the expertise to precisely define or oversee complicated issues
• Concerns about the rise of administrative agencies
o The rise of the “administrative state”—the “headless fourth branch of government”—can be viewed as a threat to democratic values
20& 21 century development in executive branch
• Expansion of Legislative Power
• Three indicators of expanded legislative power
o Increased action via committees, which oversee the operation of government
o Increased reliance on the “informing function” of Congress, which includes the power to conduct investigations and hearings
o Increased reliance on the “oversight function” of Congress, which includes auditing (GAO)and authentication (CBO) roles
