Separation of Powers & Checks and Balances

Checks & Balances In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. “But what is government itself but the greatest of all reflections on human nature…In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself” James Madison, Federalist No. 51 In Federalist No. 51, James Madison argues that the mechanism to keep government from getting too powerful is harness human ambition – “ambition must be made to counter ambition”. That mechanism is known today as Checks & Balances and it is a core principle of the U.S. Constitution.

 2/3 Required for Override  Veto Power Executive  Appoints Judges  2/3 Required for Override  Can Refuse to Enforce Court’s Decisions  Treaties and Appointments  Commander in Chief  Impeachment requires 2/3 vote  Override a Veto  Approve Treaties/Nominees (Senate Only)  Appointed for Life  Judicial Review  Declares war Legislative  Can Impeach Play the slide above to see how checks and balances work. As you click through the animation, note how the powers of one branch are countered by a power from another branch. Judicial  Judicial Review Approves Judicial Nominees (Senate only)  Can Reorganize the Court

In Depth ………. Judicial Review What are the major limitations on the Court’s power of judicial review? no power to enforce appellate jurisdiction In Depth – Judicial Review Two limitations of the Court’s power of Judicial review: One, the Court has no enforcement powers. They must rely on the Executive branch to enforce their decisions. Historically, presidents have not always been willing to enforce the Court’s decision. A good example is Andrew Jackson’s refusal to abide by the Court’s decision that removing Native American tribes from Florida and Georgia was unconstitutional. The Indians were removed. Another limitation comes from the fact that the vast majority of court cases come to the Court on appeal (appellate). The Court must “wait” for the case to be challenged. If the law is never challenged, or if the losers in the lower courts do not appeal, then the Supreme Court has not the power to rule on the case.

In-Depth………….Impeachment Why did the Framers want impeachment to be difficult? Johnson (1868) Nixon (1973) Clinton (1999) Bush, 2007 In Depth – Impeachment A superb example of checks & balances can be seen in the process of impeach. We have seen a 3 serious attempts to impeach a president in U.S. history. But before we can get into these examples, there is some things that need to cleared up about impeachment: The impeachment process has two steps, both of which require a 2/3rds vote … First, the House impeaches the president. “Impeachment” per se, means to only to accuse the president of wrong doing. Second, the Senate puts the accused president on trial. If found guilty, the president is immediately removed from office.

Impeachment Impeached Removed A. Johnson - R. Nixon - B. Clinton - Yes No No No Two presidents have been impeached (accused), but no president has been removed from office. Nixon would have been impeach and likely removed from office but instead resigned (the first president in history to do so). Andrew Johnson escaped removal from office by 1 vote in the Sentate.

In-Depth……….War Powers Act

War Powers Act (1973) Unless Congress gives an official DECLARATION OF WAR, or otherwise AUTHORIZES action, the president must … Must Inform Congress within 48 hours Stop Fighting in 60 days / Pull troops within 90 days Authorization for the use of military force (Sept. 18, 2001) Libya, 2011 In Depth – War Powers Act A great case study of checks & balances and how it actually works in government can be seen in the early 1970’s. By that time there was a growing feeling among members of Congress that the presidency had gone to far in its war making powers. Presidents had gotten into the habit of sending troops to battle without a declaration of war and Congress felt like it was time to “reign in” the presidency. The result was the War Powers Act (or Resolution) of 1973. Specifically, the act came in response to the Vietnam war (at that time, America’s longest undeclared war) and to the secret bombing campaign into Cambodia authorized by President Richard Nixon. The law put restrictions of the president’s ability to conduct military operations (see details in the slide above) with congressional approval. The law was passed and sent to the President Nixon’s desk, which Nixon then promptly vetoed. Congress in turn, passed the law over Nixon’s veto with a 2/3rds vote. The law is still in force today although there is some question whether it is always being followed (see link above, Libya 2011).

President Bush nominated Robert Gates to replace outgoing Secretary of Defense Donald Rumsfeld in 2006. Democrats in congress put on the Rumsfeld to resign, so President Bush had to find someone whom the Democrats in the Senate would accept. President Bush has nominated Samuel Alito to the U.S. Supreme Court in 2006 to fill the vacancy left by Sandra Day Oconnor. The Senate confirmed the nomination