Checks and Balances

Understanding Checks and Balances

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The ideas of “checks and balances” and “separation of powers” are quite similar, and are foundational to the government of the United States.  It’s really quite simple:  just as one does well not to put all his eggs in one basket, a nation does well not to put all its governmental power in one person or one body.

In the United States Government, those powers are split into three separate “branches”: Legislative, Executive, and Judicial.  The first makes the laws, the second puts them into practice, and the third interprets the laws, ruling on what they mean.  In contrast to this model, however, let us suppose that all these powers were vested in our President.  This would make him a dictator.  He could make up the laws as he wishes, interpret them however he pleases, and enforce and implement them whenever he likes.

Our Founders knew from bitter experience that such an arrangement was not good!  This is why they purposely split up the government into separate branches.

Here are a few ways the government is supposed to be kept in check.

  1. The Constitution itself provides rules on who may and may not serve in the elected offices of the Federal Government.  The President must be a “natural born citizen” of at least 35 years of age, and must have been a resident in the US for at least 14 years.  A Senator must be at least 30 years old and must have been a US citizen for nine years, and an inhabitant of the State he is elected to serve.  A Representative must be at least 25 years old, must be a citizen for seven years, and in inhabitant of the State he is elected to serve.
  2. The Constitution explicitly states that the Federal Government only has the powers that are granted to it by the Constitution.  The Tenth Amendment to the Constitution specifically leaves all other powers “to the States…, or to the people”.  This is supposed to present a very powerful check to the Government, yet the people have not insisted that the Tenth Amendment be enforced.
  3. Each house of Congress (The Senate and the House of Representatives) has the power to punish or to expel their own members for “bad behavior” while in office.
  4. The US. House of Representatives has the power to bring formal charges (to “impeach”) any federal official for “treason, bribery, or other high crimes and misdemeanors“.  This includes “the President, Vice President, and all civil officers of the United States” .  This would also include Federal Justices and Judges who are in “bad behavior” while in office.
  5. The US Senate has the power to try any impeachment passed by the House of Representatives.  A two-thirds vote of the Senate will then remove the impeached person from office.
  6. In an impeachment trial, the Chief Justice of the Supreme Court presides over the Senate, providing a check on the Senate’s powers.
  7. The Vice President of the United States serves as the President of the Senate, giving the Executive Branch a check on the Senate.  The Vice President has no vote in the Senate, however, unless the Senate is tied.
  8. The President may veto any bill passed by Congress with a majority of less than two-thirds.  The only way Congress can override this is to bring the bill to the floor once again and pass it by a margin of two-thirds or better in favor.  This gives the President a very powerful check against the Congress.
  9. The President may appoint federal justices and judges, thereby exercising considerable influence over the courts.  The President may also appoint all the officers of the Executive Departments, including Cabinet Members, Directors, etc.  Further, the President appoints all ambassadors and envoys.
  10. The US Senate must confirm all presidential appointments by a majority vote.  This presents a considerable check on the President’s powers.
  11. The Supreme Court may rule against the laws passed by Congress when it holds those laws to be in violation of the Constitution.  The Court does not act unilaterally in such matters, however.  Rather, it is necessary that someone file a lawsuit or an appeal to a lawsuit in that Court in order for the Court to hear such a case.

Many of these powers are rarely used in Washington.  It is no surprise, therefore, that our government is exceeding its authority.  With many of the checks and balances not being employed consistently, how could it help but stray?  This is why the Rule of Law Pledges for candidates specifically mention making the fullest use of checks and balances powers.

The Powers of the People

Meanwhile, here are some checks and balances that the citizens present into the equation:

  1. The citizens elect the federal officials.
  2. The citizens are guaranteed freedom of speech, freedom of the press, freedom of assembly, freedom to petition the government for a redress of grievances.
  3. The citizens are the source of the taxes that support the Federal Government.  If the citizens were to be in such disapproval of the Government as to refuse the payment of their taxes, the government would be unfunded.
  4. The Constitution specifically acknowledges that the people have the right to keep and bear arms.  Should the people ever view the Government as tyrannical and in need of overthrow, they have the power to do so.  The Declaration of Independence explicitly states that it is their “right’ and even their “duty” to overthrow a government that usurps powers.  And Thomas Jefferson, knowing how much those in power tend to exceed the limits of their powers, opined that an armed revolution might be necessary as often as every 20 years or so!

Of the four examples above, the citizens are failing remarkably at the first, for they traditionally insist on filling Washington with officials who will not abide by the Rule of Law.  The use of the second is inconsequential if the first is failing; it does no good to exercise our freedoms of speech if we continue to settle for the kinds of candidates that the current establishment puts forward for our approval.

The Rule of Law revolution is aimed at the first example above.

The Powers of the States

The States, too, are supposed to be able to keep the Federal Government in check.  They can refuse the Federal Government in a number of ways.  For instance, they can refuse the bailout money currently being offered.  They can also refuse Federal funding and mandates for transportation, education, and a host of other things.  The states, however, are generally not refusing.  Instead, the lure of “free” Federal dollars has proved irresistible, so the States have volunteered to cede to the Federal Government powers that were explicitly left to the states.

Among those powers is the power of secession.  In no place does the Constitution forbid the right of secession to the States.  Further, the Tenth Amendment says that any powers not prohibited to the States by the Constitution are therefore left to the States.  Don’t tell anyone, but when the Southern States seceded prior to the Civil War, they thought they were committing a consummately legal and proper act!  (No matter how much we revile slavery, we must honestly recognize the legality of their secession.) They considered that to be attacked by their former nation would be as unjust as to be attacked by any other foreign power.  Only afterward were Americans conditioned to believe that our nation is “indivisible”.  And this did not come about by constitutional amendment, mind you, but by a simple Pledge of Allegiance that has been taught to nearly every public school child since 1892.

The States, of course, could have refused such a pledge on principle, but they did not.

And the Supreme Court could have struck down the mandating of that Pledge, too, but they did not.

This is just one example of thousands.  We hope that the reader will ponder these things and realize in time just how rampant is this problem with the states failing to stand up to keep the Federal Government in check.

Contrary to popular opinion, the States are not merely subdivisions of the Federal Government; they are sovereign nations unified under a Constitution.  The Constitution is the only means of unification of the states.  There is no other proper mechanism by which they can be unified—including a Federal Government that is constantly exceeding its very limited powers.

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