Introduction
One of the earliest tenets of the American government is the need for checks and balances in order to maintain a sense of equality and fairness in the choices being made for the American people. The US Constitution implements the separation of powers and checks and balances through the use of various overriding powers that each branch of government has over the other. For example, while Congress can approve a bill for legislation, the president has the opportunity to veto it if he does not like it. Congress, meanwhile, can impeach the president if they feel he is not performing according to his duties. This was enacted by the founders of the Constitution in order to make sure no one part of the government had too much power. Without the principle of checks and balances, in theory, one person or branch of government could have unilateral and unjust authority over the entire nation, passing policy and operating on principles that the people do not agree with (Wood, 1969).
While the system of checks and balances as it exists in America today was created ostensibly to facilitate safeguards against this kind of tyranny, it can be argued that the system itself is broken. The American system of checks and balances is far from perfect, and the prevailing scholarship on this system within American politics paints a conflicting picture regarding whether or not checks and balances works as a truly functioning and effective system. The following outlines the major scholarship on these two sides of the argument, acknowledging the existence of flaws within the separation of powers while still presenting arguments for its continued effectiveness.
Madison and the Principle of Checks and Balances
In order to examine the effectiveness of checks and balances in practice, it is important to evaluate the ideals of its principle at the time of its creation. James Madison, in Federalist Paper #51, notes that “men are not angels” – in essence, men behave imperfectly and are prone to weakness and immorality due to their very nature (Madison). This simple fact necessitates the presence of a government in the first place; a larger body must govern us because we cannot govern ourselves as individuals. At the same time, this creates a dilemma: the system we put in place to protect us from individual greed is itself run by individuals – they can use this power against the people for their own ends. To that end, the separation of powers in the Constitution is meant to lessen the power any one individual has within the government – with each branch providing checks and balances to the other, these groups can keep a watchful eye on each other to ensure that the duties of government are conducted fairly. As Madison writes, “ambition must be made to counteract ambition,” thus necessitating the self-enforcing nature of these structures (Madison). Those who look for power are prevented from attaining too much due to federalism and the separation of government competencies within the branches of government. Factionalism is also reduced, as dividing authority in this way: "will render an unjust combination of a majority on the whole very improbable, if not impracticable” (Madison). As long as the majority of people uphold the ideals of “justice and the general good,” it would be possible to prevent tyranny, checks and balances giving them the power to do so (Madison). Madison’s treatise on the necessity of checks and balances serves as the ideal philosophy by which to employ it; its effectiveness in enacting these ends, however, is debatable.
The Broken System of Checks and Balances
Despite Madison’s idealism regarding the ability for checks and balances to see to the greater good, there are many political scholars who see the system (as it is currently applied in modern America) as fundamentally broken. The uniquely problematic nature of the president’s role in the separation of powers allows for many possible problems with America’s system of checks and balances. Shugart & Haggard (2001) discuss the concept of presidentialism when referring to the powers of the executive branch in government – this is typically characterized by a separation of purpose between branches. Four dimensions of presidential regimes include the cabinet being accountable to the president, the electable nature of the president, the presence of fixed terms, and the president having veto powers; these factors affect “the degree of separation of power within a regime,” and are a substantial metric for determining the effectiveness of America’s checks and balances (Shugary & Haggard 2001, 71). However, because of the lengthy procedure that involves punitive measures such as impeachment against executives who have overstepped their bounds, it is extremely difficult for legislature to fight against an incredibly powerful executive branch if a unity of purpose is not found (Shugart & Haggard, 2001)). In essence, having a government that is divided by party (e.g. Democrat, Republican) or constituency (e.g. state or district vs. federal issues) can create vast potential for balkanization and gridlock. In order to reach compromises in order to move forward, a broad consensus must often be reached instead of a true, detailed enactment of a specific party agenda – this has the effect of watering down legislation and decreasing its efficiency (Shugart & Haggard, 2001).
The most substantial argument against the current American system of checks and balances is the corruption that has been levied against it in its present form. Wilson (1885) provided some of the earliest criticism of the American system of checks and balances, noting that they have become ineffective due to the change in the condition of government. Federal power over state power, for instance, is not given the appropriate checks, with policy, commerce and political sentiment giving the federal government greater power, as it grows further with each decision on state government jurisdictions. While the Supreme Court theoretically has the power to check this growth of federal power, the judicial branch frequently shies away from taking stands on the conflicts between political branches, particularly those between the legislative and executive branches (Fisher, 1990). Fisher (1990) argues that the intrusion of the other two branches on each other is insufficiently checked by the judiciary, as the Supreme Court often takes a ‘functional approach’ to ensure that they do not have to become too deeply involved in setting rigid boundaries between powers (58).
There is also a tremendous lack of faith in the ability for the branches of government to truly balance each other out – the executive branch has been shown to be unable to stop funds from being appropriated by Congress, which in turn has shown an ineffectiveness in stopping the executive from exercising his authority over the military and withholding important information from the legislature and judiciary alike (Levi, 1976). Because of this inequality of the ‘organs’ of government, it is impossible for all branches to have equal checks and balances over the other, making the system ineffective and prone to loopholes (Levi, 1976). The legislature is said to have a substantially imbalanced role in the system of checks and balances, as their laws provide the framework for the government as a whole – the executive and the judiciary have only a limited ability to veto or revise laws they deem unconstitutional or not in service of their interests (Katyal, 2006).
America’s broken and ineffective application of its current separation of powers can be personified in the relatively unchecked power of the office of the president, according to Fisher (2005). Despite the volumes of intellectual support Fisher cites in favor of the presidential power to possess war powers, for example, Fisher has noticed an overall trend in the president’s increased ability to declare war and command the military without authorization or consultation from congress (Fisher, 2005). Historical precedent for this unchecked power goes back to Harry Truman’s declaration of the Korean War in 1950, in which he ignored the opportunity to consult Congress for statutory support, thus violating the “the intent of the UN Charter and the explicit language of the UN Participation Act” (Fisher 2005, 592). This showcases a distinct preference for the executive branch in the current separation of powers, allowing the president to be decisive without honoring the constitutional deference to Congress and the people America’s checks and balances seemingly require. Fisher’s exploration of both sides of the scholarly debate on presidential powers establishes a distinct debate between the intellectual justifications of the president as the gatekeeper of national interest, and those who are concerned with the increased power and decreased accountability of the presidency as just one part of a complex system of government. The executive authority of the president, scholars like Fisher, DeConde (2000), and others argue, should be questioned more frequently in light of scandals like Vietnam and Watergate, instead of viewing those instances as rare aberrations in the otherwise-unimpeachable status of the presidency.
Arguing for the Maintenance of Checks and Balances
While these problems with the systems of checks and balances are certainly valid, there are also scholars who maintain that the system still works, even if it does not work as effectively (or in the same way) that Madison envisioned. Olson (2000), for example, argues for the ‘invisible hand’ of the free market as a means to maintain the system of checks and balances and vice versa through a framework that provides protection of contract and property rights (Y) through a regime’s possibility of survival (X1) and the regime’s stake in the nation’s market (X2). The democratic principles that lie behind the system of checks and balances provide effective external benefits of protecting property rights and contracts, as "Democratization is an act of subjecting all interests to competition, of institutionalizing uncertainty" (Przeworski 1991, 14). This in turn prevents the rise of autocrats (if applied properly), leaving the invisible hand to force governments to become kind by creating a self-sustaining system from which it can feed and maintain itself. Without the system of checks and balances to protect the people, governments would be able to squeeze the life out of their population far more quickly than it could sustain itself , which would soon lead to the end of the government as well as the country (Przeworski, 1991). By maintaining checks and balances, the ‘invisible hand’ allows the balance of benefit and cost to remain steady.
Others argue that the system of checks and balances is still effective, because the powers involved are not separated, but instead shared, thus encouraging collaboration and leading to decisions based on consensus. While Cohen, McCubbins and Rosenbluth (1995) would argue that this leads to less decision-making, Neustadt (1960) believes this simply allows the branches of government to be forced to work together to enact change. The president is but one of several different branches in control of the bureaucracy, even providing the White House Staff with their own independent powers (Neustadt 1960, 34-36). Because of the separation of powers, this requires the president and other branches of government to collaborate and persuade the others to help them despite their own institutional positions: "Yet nobody and nothing helps a President to see, save as he helps himself" (Neustadt 1960, 127). This particularly benefits the president, as he is able to leverage bargaining power due to the sheer number of favors he can trade in exchange for following his lead on his decisions. This may seem like a violation of the system of checks and balances – after all, it unfairly places the president on a higher level of influence than the other branches. However, because of the ability for bargaining to actually pass legislation through, it may be one way to overcome the gridlock that is often levied against the government due to the increased veto powers each branch possesses. Samuels & Shugart (2003) further this argument by saying that presidentialism, while having the potential for impeding accountability, actually provides a strong framework and separation of purpose for voters to determine exactly how responsible each branch is for dictating policy (33). The current presidentialism of the separation of powers, then, helps to enforce mandate representation in which the president simply enacts policies and interests shared by voters (Samuels & Shugart, 2003). While this may not be the exact type of democracy that Madison envisioned, it is theoretically an effective means of enacting and changing policy.
The concept of constitutional precommitment furthered by Holmes (1995) notes that, while the creation of the Constitution legally binds future generations to rules created by the framers of the Constitution hundreds of years ago, the separation of powers acts as an effective method of providing positive constitutionalism (the ideal that creating fundamental laws in an ineffable document serves to protect freedoms). Holmes holds up the First Amendment as proof of this, as uncritical action is guarded against by framing free speech as a method of political revision. Also, the difficult (but achievable) process of amendment allows voters and Congress to have a method of asserting the nation’s will without making it too easy to facilitate the destruction of rights. In essence, Holmes (1995) argues that the gridlock that checks and balances creates in government is good, as the protections the current state of law provides should be protected through the difficulty of the legislative process.
Furthermore, a government divided by checks and balances provides ample opportunity for the politics of delegation to act as an equalizing force in American politics (Persson, Roland & Tabellini, 1997). According to Volden (2002), checks and balances do not encourage delegation, but rather discourage it. Three primary implications he outlines in his work include the dependence of delegation on the structure and location of particular government agencies, which will then receive disproportionate support from the president if their agendas are aligned with his (126). Executives will often fight to maintain power that has been delegated to them when under a more unified government in the past, particularly when the bureaucracy’s and executive’s politics coincide. This concept relies heavily on the constant shifting of the government between unified and divided stances; while delegation occurs more often under a unified government, if policies change and political viewpoints become more divided, there are systems in place to maintain the status quo, thus reducing radicalism and extremism within party politics. Divided governments are much more willing to provide discretionary leeway for moderate agencies: "Here, legislators and the executive would both rely upon the discretionary authority of the centrist agency to moderate extreme shocks” in the government’s priorities and politics (Volden 2002, 126). Each branch of government has their own methods of maintaining the status quo if they prefer it; the executive can veto bills to prevent discretionary reductions, while the legislature is able to provide concessions in policy to incentivize executive approval of said reductions. The fluid nature of the politics and policies of each branch of government, and even individual actors, necessitates this need to negotiate and facilitate concessions between legislators and the executive.
Conclusion
The separation of powers enacted by the three branches of the American government was meant, at the outset, to restrain the potential for tyranny and the imposition of one perspective over the whole of government. Today, the separation of powers do not work out as well in practice. Because of the checks and balances that have been established, and partisan politics which lie along ideological lines and party affiliation, political gridlock occurs, wherein nothing gets done and sides must negotiate and delegate with each other to get results. Instead of making sure no one gets too much power, the system of checks and balances simply works to allow legislators on both sides of the aisle to block efforts by the other side to get things done merely to score political points. While the separation of powers is good in theory, the current polarizing partisanship of Congress and the tendency towards presidential gridlock makes it hard to get things accomplished within government.
That being said, there are still many reasons to maintain a sense of faith in the system of checks and balances as a whole. A system of checks and balances, when performed ideally, is encouraged by the ‘invisible hand’ of the free market, preventing the government from growing too powerful, or any one perspective from taking hold and crushing the people. It is possible to think of the separation of powers instead as a sharing of powers, thus enabling the branches of government to negotiate with each other to create a consensus, then pass and enforce public policy. While the issue of inequality of organs still exists, due to the inability to evenly divide the powers of government, America’s existing system of checks and balances is ultimately preferable to a parliamentary system, in which control is far too centralized to address Madison’s fears of “too much ambition.”
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