Balancing the Branches

August 2, 2018

In the late 1640s, the English monarchy was overthrown by the Parliamentary army when King Charles I became tyrannical. Believing in the divine rights of kings, he oppressed the people when he began instituting statutes and levying taxes in opposition to the Parliament. The King was using the commonwealth of England for his own personal gain, and both houses of Parliament tried to curb the King’s power, but to no avail. With there being only a minor check on the King, the powerless Parliament, which could be summoned and dismissed at the King’s will, was not enough to restrain his power. Finally, members of Parliament had enough. Not having a strong entity to check the King and ensure he did not exert absolute power initiated the rising of the people against an oppressive government. The animosity reached an all-time high when Charles I entered Parliament without the consent of the House of Commons; and demanded the arrest of several Members of Parliament who opposed him and his right to rule. Subsequently because of his actions, the English Civil War broke out. This was the turning point in which the Parliamentary forces overthrew Charles I and was the first time an English monarch was executed. After the Council of State faltered, the monarchy was restored as a Constitutional Monarchy in 1660 under King Charles II; the Parliament restrained the powers of the monarch to only that of a head of state.

 

100 years later, in the 1760s and early 1770s, Parliament ended up circling on what they fought a civil war for and instituted repressive taxes and laws on the colonists. In 1765, King George III and Parliament passed the Stamp Act, which placed a tax on all printed materials in the colonies. On top of this, they also enacted the Tea Act, Quartering Act, and the Townshend Act; all three were put in place to levy taxes to pay for Britain's crippling war debt. The colonists, as Englishmen, resented these actions because they had the right to be immune from taxes if they were not represented in Parliament. “No taxation without representation” was the battle cry against the Parliament’s tyranny towards the colonies and the taxation that was imposed. In addition, King George III cut off trade with the rest of the world, and he refused to give royal assent to necessary laws the colonists enacted to properly govern. He required soldiers, who were in the colonies to enforce the King’s dictates, to live and eat with the colonists they were oppressing. These events, among others, helped to kindle the start of the Revolutionary War. With there being no check on the Parliament and the colonists being unrepresented, they raised up and declared independence from a tyrannical legislature and government.

 

When America won its independence from Great Britain in 1783, the Founders had already in place the Articles of Confederation. During the drafting of the Articles, the Founders were certain that a forceful executive could have the opportunity to unravel into a monarch or an autocrat. While not allowing for a strong executive or a strong federal government, the Articles of Confederation proved to be a defective form of government. With no solid federal government or a firm executive, it was almost if not impossible to enforce laws, levy taxes, or conduct proper diplomacy.

The Founders saw the need for a zealous federal government that included a vigorous executive, but they had to determine how to establish it. They needed to ensure that one arm of government did not dominate the others or oppress the people as it did in 17th and 18th century England. Their goal was three branches of government (the executive, the legislature, and the judiciary), all separate, that work simultaneously to provide the American people with continuity and stability without threat of fear or tyranny. James Madison (a Federalist who supported the Constitution and a strong federal government), expressed his anxiety over one branch of government taking control over another or the people. In The Federalist Papers he argued: “In framing a government, which is to be administered by men over men, the great difficulty is this: you must first enable the government to control the governed; and in the next place, oblige it to control itself.” So how would the the Founders ensure that one branch did not usurp and exercise power over the others or the people with a heavy hand like in England?

 

The Founders, when drafting the Constitution, weaved a series of checks and balances into the text that prevents one branch or entity of government from exerting too much power over its counterparts. For example, the executive’s power to veto the legislature checks Congress’ actions in passing statutes that either oppress the people or are just arbitrary. In turn, the legislature can override the executive veto with a 2/3’s majority vote in the House and Senate. This ensures that the legislature (which represents the people’s opinions) can pass a piece of legislation that it feels is beneficial without the approval of the executive. The judiciary has a check on both the executive and the legislature. When Congress passes a statute or an executive order is signed, the judiciary has the power of judicial review. Alexander Hamilton argued in the Federalist Paper No. 78, that the judiciary is the branch of judgement and that Justices embody the Constitution. To this point, the Court always had the power of judicial review because it is its job to interpret and apply the Constitution. Although this power is not expressly written into the Constitution, it was recognized by the Supreme Court case Marbury v. Madison. The power of judicial review allows the Supreme Court to review legislation or executive orders and either deem them constitutional or unconstitutional based on the nine Justices’ interpretation of the Constitution. Chief Justice Marshall reasoned that a law that is in conflict with the Constitution must be struck down by the Court to protect the integrity of the Constitution. The main goal of our system is ensure that the courts keep continuity of the rule of law and to make sure the other branches are staying within constitutional bounds.

 

There are several other checks that each branch of government has that balance the others. For example, the House has impeachment power over the executive and judiciary, can jointly declare war with the Senate, and originates spending/appropriation bills. The Senate in turn can also appropriate funds, holds impeachment trials, and approve appointments to the executive and judicial branches. The President is the commander-in-chief of the military and can check the judiciary by the power to nominate federal judges as well as the power to pardon. The Supreme Court has ruled that Representatives and Senators can be expelled by their peers if they practice disorderly conduct; and the Chief Justice heads the impeachment trial of an executive in the Senate.

 

On top of the checks that each branch possesses against each other,  the legislature and executive have checks within themselves. The legislature is a bicameral institution, meaning there are two chambers in the legislature, the House and Senate. The check is just that, two chambers. Legislation has to pass both chambers before being signed into law. If it does not pass one, under the presentment clause or mirror image rule (which states that a piece of legislation must pass both houses with identical wording and language), it will not make it to the executive's desk to be signed. The executive on the other hand appoints a cabinet. The cabinet, under the 25th Amendment, can vote to determine if the executive is competent to hold office; if not, they can vote to remove him. Under the 22nd Amendment the President is term limited to two terms as well.

 

The checks and balances are in place to ensure that each branch of government does not overstep its bounds and stays within parameters of the Constitution. Checks and balances bring stability and reduce animosity between the several branches of our federal government. It establishes a safeguard against tyranny of the government against one branch taking control of another or the people as the colonists saw in the late 18th century. Madison conveyed in Federalist Paper No. 51 that it was human nature to seek power and that government constraints were needed to be able to curb such power: “It may be a reflection on human nature, that such devices should be necessary to control the abuses of government.” Checks and balances ensures justice and places a shield so the government does not oppress the people’s liberties by exerting inordinate amount of power over them.

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Michael is an intern for Judge Warren. He is currently finishing his undergraduate degree in Political Science with a double minor in Legal Studies and Broadcasting. After graduation, he plans on attending law school and becoming an attorney.

 

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