Checks and Balances

The Constitution gives the national government real power, and then it divides that power. No single person or group makes the laws, carries them out and decides what they mean. In this lesson you will meet the three branches, learn the main checks each one has on the others, and see why the framers built government this way. The real examples come from history. The others are made up for practice, so you can focus on how the design works.

Why divide power?

The people who wrote the Constitution in Philadelphia in 1787, often called the framers, had two worries. They wanted a national government strong enough to work. Under the first national plan, the Articles of Confederation, the national government was weak, with no separate executive branch to enforce laws and no national court system. But the framers also feared any person or group holding too much power. Many of them had lived under British rule and believed that power gathered in one place is easily abused.

They found guidance in the French thinker Montesquieu, whose book The Spirit of the Laws (1748) argued that liberty is safer when the power to make laws, the power to carry them out and the power to judge disputes are held by different people.

James Madison, who played a leading role in planning and defending the Constitution, explained the design in an essay called Federalist No. 51 (1788). It was one of the Federalist Papers, essays that argued for approving the Constitution. Madison reasoned that officials will naturally defend the power of their own branch. So the Constitution should give each branch the tools and the motive to resist the others. In other words, the plan uses each branch's wish to protect its own power as a safeguard against any branch taking too much.

Three branches, three jobs

Separation of powers means dividing the work of government among three branches. Each branch is described in its own article of the Constitution.

• Legislative branch (Article I): Congress. Congress has two houses, the House of Representatives and the Senate. It makes laws, raises taxes and decides how federal money is spent.
• Executive branch (Article II): the President, with the Vice President and the departments and agencies they lead. The executive branch carries out, or enforces, the laws. The President also negotiates treaties and is commander in chief of the armed forces.
• Judicial branch (Article III): the federal courts. There is one Supreme Court, and Congress has created lower federal courts. Judges decide cases about the Constitution and the laws.

The branches are chosen and kept in office in different ways. House members serve two-year terms, senators serve six-year terms, and the President serves a four-year term. Federal judges are nominated by the President and confirmed by the Senate. They are not elected, and they hold office during good behavior, which in practice means for life unless they resign, retire or are removed by impeachment. Different terms and different ways of being chosen make it harder for one group to control everything at once.

Checks and balances: how the branches limit one another

Separation of powers says who does what. Checks and balances says how each branch can limit the others. A check is a power one branch has over another. Balance means that no branch is meant to be able to dominate the rest.

The separation is not total. The branches share some powers on purpose. The President takes part in making law by signing or vetoing bills, and the Senate takes part in the executive branch's work by confirming appointments and approving treaties. Even Congress is split into two houses, and a bill must pass both, so the House and the Senate check each other too.

The next three sections give the main checks. They are examples, not a complete list.

Checks involving the President and Congress

• Veto and override. After a bill passes both houses, the President can sign it, which makes it law, or veto it, which means refusing to sign it. Congress can override a veto if each house passes the bill again by a two-thirds vote of the members voting. An overridden bill becomes law without the President's signature. If the President neither signs nor vetoes a bill within ten days (not counting Sundays) while Congress is in session, the bill becomes law without a signature. If Congress has adjourned in that time, the bill dies, which is called a pocket veto. In 1792, George Washington issued the first presidential veto, on a bill about how to divide seats in the House among the states.
• Confirming appointments. The President nominates cabinet secretaries, ambassadors, federal judges and Supreme Court justices, but the Senate must confirm them. The House does not vote on these confirmations.
• Approving treaties. The President negotiates treaties with other countries, but a treaty needs the approval of two-thirds of the senators present. In 1919 and 1920, the Senate did not give the Treaty of Versailles, the treaty that formally ended World War I with Germany, that two-thirds vote. The United States never ratified it.
• The power of the purse. Congress passes the laws that raise taxes and set federal spending. The President can propose a budget, but money can be spent only if Congress provides it by law. The Constitution even says Congress may not give money to the army for longer than two years at a time, so an army would need regular approval.
• Impeachment. The House of Representatives can impeach the President, the Vice President, federal judges and other federal officials. That means it votes to bring formal charges, such as treason, bribery or other high crimes and misdemeanors. The Senate then holds a trial. Conviction needs two-thirds of the senators present, and a convicted official is removed from office. In 1868, the House impeached President Andrew Johnson. The Senate trial ended one vote short of the two-thirds needed, so he stayed in office.

Judicial review and Marbury v. Madison (1803)

Judicial review is the power of courts to decide that a law or an action of the government violates the Constitution, and so cannot be enforced. The words “judicial review” do not appear in the Constitution. The Supreme Court explained the idea in the case Marbury v. Madison in 1803.

The case began when President John Adams, near the end of his term, named William Marbury a justice of the peace. The new Secretary of State, James Madison, serving under the new President, Thomas Jefferson, did not deliver Marbury's official papers. Marbury asked the Supreme Court to order Madison to deliver them, relying on a section of the Judiciary Act of 1789. Chief Justice John Marshall wrote that Marbury had a right to the job, but that the Court could not give him this order. The section of the law that gave the Court that power conflicted with the Constitution, so that part of the law was not valid. Marshall reasoned that when a law conflicts with the Constitution, courts must follow the Constitution. It was the first time the Supreme Court struck down part of a federal law.

Courts can also check the executive branch. In 1952, the Supreme Court ruled that President Harry Truman had gone beyond his powers when he ordered the government to take over steel mills during a labor dispute in the Korean War.

Judicial review has limits. Courts act only when a real case is brought to them. They have no army or police and depend on the executive branch to carry out their rulings. And a later Supreme Court can change an earlier decision, or the Constitution can be amended.

Checks on the courts, and how the people can answer them

Congress and the President also check the courts. The President nominates federal judges, and the Senate confirms them. Congress creates the lower federal courts and decides how many justices sit on the Supreme Court (the Constitution does not say; the number has been nine since 1869). The House can impeach a federal judge, and the Senate can remove one. Because judges are not elected and do not lose their jobs over an unpopular ruling, they can decide cases without worrying about elections.

The President can also pardon, which means forgive, offenses against the United States, meaning federal crimes. A pardon does not cover crimes under state law, and it cannot undo an impeachment. It is a power over punishment, not a power to change the law.

The Constitution gives the people one more way to answer the courts on a constitutional question: an amendment. Congress can propose an amendment with a two-thirds vote in both houses (or two-thirds of the state legislatures can ask for a convention to propose one), and then three-fourths of the states must ratify it. Today that means 38 of the 50 states. The President has no role in this process. An amendment changes what the Constitution says, so it can change the result of a court decision about it. For example, in 1895 the Supreme Court ruled that a federal income tax law was unconstitutional. The 16th Amendment, ratified in 1913, gave Congress the power to tax incomes.

Checks and balances is not federalism

Checks and balances and federalism are both ways of limiting power, but they split power in different directions. Checks and balances divides power among the three branches of the national government: Congress, the President and the courts. Federalism divides power between the national government and the state governments. For example, only the national government can coin money (the Constitution forbids states to do it), while states, not the national government, set many everyday rules, such as their own rules for driver's licenses. A quick test: if the question is “which branch can stop this?”, it is checks and balances. If the question is “does this power belong to the nation or to the states?”, it is federalism. States also have their own branches of government, but that is a separate topic.

What each branch cannot do

Because the powers are divided, each branch has limits.

• The President cannot make laws. Only Congress passes laws. The President signs or vetoes bills. The President can issue executive orders, but these direct how the executive branch carries out the law. They must rest on the Constitution or on a law passed by Congress, and they can be challenged in court.
• The Supreme Court cannot start a case on its own. A real dispute must be brought to the courts by people or groups who are affected. Courts do not give advice about a law that nobody has challenged. The Supreme Court does choose which appeals to hear, but only from cases that others have already brought.
• Congress does not run the agencies that carry out the laws, and it does not decide ordinary court cases. It writes laws and controls money. The executive branch carries out the laws, and the courts decide disputes about them.

“Check” does not mean “boss.” Each branch has real powers over the others, but in different areas, and none controls all the rest. The system also slows decisions down. The framers accepted that trade-off on purpose. Some people value the slowness as protection against hasty decisions, and others find it frustrating, but it is part of the design. The exact lines between the branches have been debated since the 1780s and are still debated today. This lesson teaches the basic design.