The Modern Federalist Papers (2010)

Origional Federalist Papers
Federalist Home   << Previous   Next >>

MODERN FEDERALIST. No. 5

Check and Balances
For the Independent Thinker.
Robert Briscoe

To the People of the Unites States of America:

The purpose of "check and balances" is a constitutional control in the hands of each department of government to prevent any usurpation of power by another department or abusive administration of the power granted to it.

For example, failure to use the checks and balances has allowed the President to make thousands of new laws, instead of Congress, by issuing executive orders. It has allowed the federal government to invade the reserved rights of the states on a massive scale. It has allowed the legislature to impose taxes on the people never contemplated by the Founders or the Constitution.

The whole spectrum of checks and balances needes to be more thouroughtly studied and vigorously enforced.

The Founders felt that if the checks and balances as orginially provided were to prove inadequate, the remedy should be a device by which the people might more directly influence the powers centers of goverment.

The Framers... separated the three functions of government, and set each of them up as a separate branch -- the legislative, the executive, and the judical. Each was wholly independent on the other. No one of them might encroach upon the other. No one of them might delegate its power to the other.

Yet by the Constitution, the different branches were bound together, unified into an efficient, operating whole. The branches stood together, suported one another. While severally independent, they were at the same time, mutually dependent. It is this union of independence and dependence of these branches -- legislative, executive, and judical -- and of the governmental functions possessed by each of them, that constitutes the marvelous genious of this unravalled document. (Stand Fast by Our Constitution; Former Under-Secretary of State, J. Reuben Clark Jr.)

As it turned out, the American Founding Fathers achieved a system of checks and balances far more complex than envisioned. These inclued the following:

  1. The House of Representatives serves as a check on the Senate since no statute can become law without the approval of the House.
  2. At the same time the Senate (representing the legislatures of the States before the 17th Amendment) serves as a check on the House of Representatives since no statute can become law without its approval.
  3. A President can restrain both the House and the Senate by using his veto to send back any bill not meeting with his approval.
  4. The Congress has a check on the President by being able to pass a bill over the President's veto with a two-thirds majority of each house.
  5. The legislature also has a further check on the President through it power of appropriating funds for operations.
  6. The President must have approval of the Senate in filling important offices of the executive branch.
  7. The President must have approval of the Senate before any treaties with foreign nations can go into effect.
  8. Congress has the authority to conduct investigations of the executive branch to determine whether or not funds are being properly expended and the laws enforced.
  9. The President has a certain amount of political influence in the support of the reelection on the legislature.
  10. The exectuive branch also has a further check on the Congress by using its discretionary powers in establishing spending within the States. (Military, education, highways, etc.)
  11. The Judiciary has a check on the legislature though its authority to review laws and determine their constitutionality.
  12. Congress has a restraining power over the judiciary by having the constitutional authority to restrict their jurisdiction.
  13. Congress has the power to impeach any of the judges who are guilty of treason, crimes or misdemeanors.
  14. President has a check on the judiciary by having the power to nominate new judges... subject to the approval of the Senate.
  15. Congress has restraining power over the judiciary through appropriations for the operation of the federal court system.
  16. Congress is able to initiate amendment to the Constitution which, if approved by three-fourths of the states, could effect the operation of the executive and judicial branch.
  17. Congress, by joint resolution, can terminate certain powers granted to the president (such as war powers) without his consent.
  18. The people have a check on their Congressmen every two years; the president every four years; and on Senators every six years.

President Washington felt that the separation of powers with its accompanying checks and balances was the genius of the American system of government. The task was to maintain it. In his Farewell Address he stated:

It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration to confine themselves within their respective constitutional spheres, avoiding the exercise of the powers of one department to encroach upon another.

The spirit of encroachment tends to consolidate the powers of all the departments in one and thus to create, whatever the form of government, a real despotism.

The greatest crises have been when some branch of government became arrogantly officious in the administration of its assigned task or flagrantly violated the restrictions which the Constitution place upon it. We have scores of nations which claim to have copied the Constitution which have failed to incorporate check and balances. In those countries the only remedy has been to resort to guns to oust the usurper. The Constitution achieves this through peaceful means of self-repair.

There is nothing to be gained and a great deal to be lost by resorting to violence to being about political change. As long as there is a remedy or repair by peaceful means, it is the most intelligent and satisfactory route to pursue. It requires more patience, but given time, the results are more certain.

PUBLIUS.

  Federalist Home   << Previous   Next >>