musing on checks & balances

[eirias]

It occurred to me recently that something in our checks and balances system isn't particularly balanced. The executive branch exerts power over the judicial branch through appointing judges. The judicial branch exerts power over the legislative branch by overturning laws. But what power does the legislative branch hold over the executive branch? They have impeachments, and ... that's it. I mean, I guess that's a pretty big power, but it's much harder to exercise than the powers held by the other two branches. Should they have more?

I was thinking of this in the context of the history of presidential elections; I had thought that it was originally federal legislators from each state that picked the president. But no; that was only in the case of no majority in the EC (though Wikipedia suggests that the founders may have thought this would happen in most elections). Originally it was *state* legislators that picked electors, thereby influencing the vote. And that's not really the same.

Any structure-of-government nerds have thoughts on this?

Comments

[rms10.livejournal.com]

But what power does the legislative branch hold over the executive branch? They have impeachments, and ... that's it.

What about vetos? And surely, the legislative branch has some control over the legislation that ultimately ends up in the executive branch.

My concern is that the judicial branch has no power when it comes to constitutional amendments. That's why the right wing pushed for all the anti-gay marriage amendments -- they knew they needed a constitutional amendment, not just a law, because a law could (would!) be struck down by the judicial branch. I think in the simplest sense, the judicial branch is there to prevent a majority from creating laws which oppress a minority, but constitutional amendments allow the majority to do just that.

(Those were all state amendments, though, and U.S. Constitution amendments are much harder to pass, so perhaps it's not much of a concern.)

[rms10.livejournal.com]

I meant overriding vetos, argh. And I'm not really a structure-of-government nerd, but all the talk about a federal marriage amendment a few years ago had me thinking about this.

[eirias.livejournal.com]

Hrm. I don't love the idea of a federal marriage amendment, obviously, nor do I love pretty much /any/ amendment I've heard floated in recent years, but the thing is, I think that this part of the government is functioning exactly as designed. I'm not sure I'd want to give the Court the power to throw out bits of the constitution (oh, hush, nonnihil). I agree that it could get problematic, e.g., if amendments were proposed that made the Constitution conflict with itself, and I don't have an answer for that, other than to hope that the fact that it's actually pretty hard to amend the US Constitution will help.

[rms10.livejournal.com]

Yeah, I'm confident that none of the recently proposed federal amendments will ever pass (federal marriage amendment, flag-burning amendment, etc.), due to the difficulty of passing one. At the state level, however, it's a different story, but I'm sure each state has a slightly different arrangement of checks and balances.

What's your opinion on a line-item veto? Too much power to the executive branch? I go back and forth on that one.

[ukelele.livejournal.com]

But it wouldn't make any sense for the judiciary to have power over constitutional amendments -- the judiciary's mandate is to interpret the laws/Constitution, and amendments are part of the Constitution. It wouldn't be an amendment if the judiciary could wink it out of existence -- and the Constitution does clearly need an amendment process (3/5 compromise, anyone?).

But this is all taken into account with the difficulty of the amendment process. Yes, a majority can impose its will on a minority, but it has to be a really big majority with an attention span. Those are hard to find.

(If your state's amending process is lamer than that...yes, that is a bummer. My state's amendment process is quite long and complicated, meaning that the anti-gay-marriage people couldn't even complete the mechanic before gay weddings started happening en masse.)

[nonnihil.livejournal.com]

The power of the legislature over the executive was meant to be implicit: The executive can obviously only execute the laws the legislature actually makes, and has no powers (apart from those granted by the constitution itself, which are small) to take action without a particular grant of authority form the legislature.

Thus, the executive branch agencies -- the various cabinet departments and whatnot -- are all legislative creations. The FCC was created by congress. Congress created and budgets the State Department. And so forth. Their powers are defined by and controlled by the legislature. The legislature could abolish the Department of Commerce tomorrow if it liked, entirely annihilating all the executive power inherent in administering that department.

Of course, both sources of executive authority (constitutional powers like the Commander in Chief power, legislative delegations like the various federal agencies) have been stretched tremendously. But that has mostly been with the apathy or even active connivance of the legislature. The check and balance remains: The executive's powers have to come from somewhere, and mostly where they come from is acts of congress.

[thaisa.livejournal.com]

Well, the House has power over spending, the Senate confirms appointments made by the executive, declarations of war and treaties have to be confirmed. The executive actually has pretty limited powers, it's just that we've politically stretched how the executive branch functions and is viewed by the public. Oh, umm, yeah, what Grant said far better than I would. *smiles*

[drspiff.livejournal.com]

Ditto on the above comments. But I'd also agree that the power of the legislature has become eroded from what was intented by the Founding Fathers. For example, the Constitution rather explicitly states that Congress alone has the power to make war and de facto that just isn't true anymore. Something in human nature is dangerously attracted to the concentration of power in the executive office, which could work accept when we've got an idiot like now... hence the danger.

[ukelele.livejournal.com]

I think I would change the word "eroded" to "ceded". But yeah.

[upsilon.livejournal.com]

As others have pointed out, there are some checks & balances you've overlooked. The legislative does have some power over the executive, but they've been mildly unwilling to use this power in our lifetimes, and very unwilling to use it in the last 5 years.

Legislative branch: Can impeach, can pass spending legislation, can override vetos, can declare war and regulate troops, can confirm/deny executive appointments, can confirm/deny treaties signed by the President

Executive branch: Can veto, can appoint judges, can pardon

Judicial branch: Can overturn laws.

Did I miss anything?