How effective are the checks and balances between the three branches of federal government? (US 45 marks)

When answering this question it is important to define and outline what it means to be ‘effective’ and therefore what the goals of the checks and balances were when put in place. When the constitution was written in 1787, the Founding Fathers had a strong desire for ‘co-operation and compromise’ amongst the separate institutions of government. Furthermore, in order to deem the checks and balances as ‘effective’, they need to successfully ensure fluidity of decisions, allowing all branches to work together, without one dominating.

The first way in which the checks and balances can be seen as effective is through the various ways in which the Legislature check the Executive, while still however allowing for the Executive to balance this. Due to the intense fear of a tyrannical ruler, due to the previous tyranny of King George, which many Americans had previously faced, the constitution was formulated in a way in which the people held much power through Congress (democratic rule), while still having a federal nature. Furthermore, there are an array of ways in which Legislature checks the Executive, most of which taking an ‘approval’ role – the Legislature have the ability to override the veto power of the Presidents, as in 2008 when Congress overrode President Bush’s veto on Medicare Reforms of protecting a pay cut for doctors. Similarly, Congress also has the ability to accuse of impeachment, with Senate holding the ability to run a trial, such as in the case of Johnson, in 1968. In this way, along with their ability to confirm appointments and various other powers, Congress is able to not only approve the actions of the Executive, but also scrutinize where necessary. Despite this power of the Legislature, the Executive also is able to balance these checks, in order to ensure the prevention of the domination of one branch – although needs the approval of Legislature, the President is the one to submit the budget, along with appoint judges and senior members of the Executive branch and setting the Agenda in the State of Union address. Along with the dominant checking and balancing of the Legislature and Executive on one another, the Judiciary, as an independent institution, is able to ensure that in an event of trying to manipulate one another, the actions of both other branches is deemed constitutional; they do this by the process of judicial review, as in the Hamdi case of 2004, in which it was declared that American citizens had their constitutional right to a fair trial, even if being tried as an enemy in combat. Thus displaying, the way in which the separate branches, along with the particularly independent nature of Judiciary, allows for ‘effective’ checks and balances.

However, despite the positive effect that the vast checks of the Legislature and the Executive have, the ‘effectiveness’ of these is perhaps questionable, due to the fact that these checks and balances are limited in how much they are used – despite the President having the power of veto, he has only used this 4 times since 2011, displays limited use. By the same token, the power of Congress to override this veto is always scarcely used – Roosevelt vetoed legislation 635 times, yet was only overridden only 9 times. Furthermore, the power of accusation of impeachment is also somewhat ineffective, in that only 3 previous Presidents have been accused of impeachment (Nixon, Johnson and Clinton) with two being acquitted (Clinton and Johnson) along with the resignation of Nixon before potentially losing position. Furthermore, not only is there a lack of use, but also a lack of effective outcome of this power. The limitations of the way these powers are used, displays that although constitutionally, the checks and balances look to be effective, in practice the execution of them is less than sufficient.

Alongside this multitude of checks and balances to deliver effective scrutiny and approval, these powers also allow co-operation to take place efficiently within a divided government. In the advent of the party of Congress differing from that of the President, which is often the case (as with the Republican legislature and Democratic Presidency of Obama today), particularly in a President’s second term, the checks and balances of the constitution allow the separate powers to still work harmoniously, to maintain a steady level of activity. For example, the way in which Congress has the power to declare war, along with the ‘power of the purse’, yet the President has the power of Commander-in-Chief, displays that both institutions have to work together effectively, in order to ensure sufficient action is taken, in order to benefit the country as a whole. Furthermore, the way in which the President negotiates Treaties, which then have to be ratified by the legislature, displays that if effective governance wants to take place, co-operation is necessary. Furthermore, the purposeful co-operative nature of these checks and balances, forced the separate branches of government to do this.

Although this appears straightforward in theory – it would be thought that both branches, despite in a divided government being of separate parties, would aim for harmony to be effective – this dependence upon one another, can lead to the most difficult hindrance of the constitutional separation of powers: gridlock. When the two branches of the Executive and the Legislature are of differing parties, despite awareness that both are needed for effective governance, a defiance to co-operate with the opposing can often lead to nothing happening at all. This is gridlock, and what happened in Clinton’s Democrat Presidency in which the Republican Congress did not agree with his budget. As they are unable to give a compromise, Clinton was forced to shut down government departments, due to a lack of resource. Contrastingly, they ability of an undivided government, in which the party of both branches of government are the same, to pass through whatever they please is as much of an issue – if both branches are in total support of one another in a case of strong party allegiance, the checks and need to scrutinize will not be used and thus, leads to ineffective checks of the different branches of government. Furthermore, showing how this system means that both ends of the spectrum can lead to ineffective checks and balances.

The multitude of checks held by both the Legislature and the Executive, the independent and neutral nature of the Judiciary, alongside the way in which they allow for overcoming a divided government, provide sufficient evidence to suggest that the checks and balance of the US Constitution are effective in providing ‘co-operation and compromise’ as stressed by the Founding Fathers. However, the way in which these are limited in use in practice, along with the way they can lead to Gridlock or contrarily a lack of scrutiny, displays the way these checks are not necessarily fully effective. Thus in this way, suggesting that although effective in principle and somewhat in practice, the checks and balances of the US Constitution do not come without limits.