WHAT YOU NEED TO KNOW ABOUT: Checks & Balances.
Lately, it seems as if the federal government is at war with itself. The House of Representatives has been investigating the White House, and lawmakers have threatened to impeach President Trump over the findings in the Mueller Report. Earlier in the year, the president vetoed a congressional resolution that would have prevented him from building his wall on the U.S.-Mexico border without Congress's approval. And a battle over one of Trump's appointees to the Supreme Court, Brett Kavanaugh, was among the nastiest in memory.
House Speaker Nancy Pelosi has gone so far as to say that the nation is mired in a "constitutional crisis" over the president's blanket refusal to cooperate with congressional investigations. Trump has responded by vowing not to work with Democrats in Congress on any legislation until the investigations end.
What's going on? Experts say it's a particularly heated showdown involving America's system of checks and balances. The Framers spread power among the three federal branches--executive, legislative, and judicial--and gave each branch the ability to curb, or check, the power of the other two. In many cases, the system works without much fuss, as when Congress approves a president's Cabinet nominee. At other times in American history, two branches have dug in their heels and fought over their respective powers.
"We've had some challenges in the past, and the system responded appropriately," says Norman Ornstein, a scholar at the American Enterprise Institute, a conservative think tank in Washington, D.C. "But I think we're at a time of enormous and important testing of the system."
Here's what you need to know about checks and balances, and how they might come into play in the year ahead.
1. Why did the Framers create checks and balances?
There weren't a lot of functioning democracies to use as examples when the Framers met in 1787 to write the Constitution. Many of them had read the political philosophers of the time and drew on their ideas. They took what they liked from the British system. They borrowed from state governments. And they improvised.
"What they came up with was what they thought was the best of all worlds," says Corey Brettschneider, a political science professor at Brown University. "The checks are meant to be a way for all the branches to be accountable to the rule of law and the people, without any one branch being able to take over." The reason for the Constitutional Convention in Philadelphia, scholars say, was the realization that the Articles of Confederation--the new nation's first constitution--were too weak to effectively bind the United States together. The Framers understood that the nation needed an executive with some authority to act on matters of national importance. But lurking in the back of their minds was the experience of being ruled by a tyrant, Britain's King George III. They had fought a revolution to get rid of the king and were leery of putting too much power into the hands of a president.
"The big innovation of the Founders is that you divide power," says David Azerrad, a political expert at the Heritage Foundation in Washington, D.C. "You don't put all the power in one place, and you give the branches some control over one another. The underlying premise is that each branch is going to be [protective] of its power and will check the others."
2. What does each branch do?
In a nutshell, the legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch evaluates the laws.
The three branches of the federal government are designed to work together but also to limit one another. Congress passes laws, but the president can veto bills passed by Congress, preventing them from taking effect. A veto, however, can be overridden if two-thirds of lawmakers in both the House and the Senate vote to do so.
The president appoints federal judges, including Supreme Court justices, but the Senate has to confirm those choices, a power known as advice and consent. Advice and consent also gives the Senate the authority to approve any treaties the president agrees to with other nations.
The federal courts can rule whether laws approved by Congress and signed by the president are unconstitutional. But those same courts are appointed by the president, subject to Senate approval.
The president can issue an executive order and bypass Congress, but the courts can rule that he's overstepped his authority and block it.
Congress also provides oversight of the federal government--everything from the military and the Internal Revenue Service to the operation of the White House itself.
In fact, Ronald Weich, dean of the University of Baltimore School of Law, says oversight is "a core constitutional function, a cornerstone of the structural checks and balances on which our federal government is built."
3. How has the checks and balances system evolved?
It's changed a lot. Experts say that has to do with the rise of political parties and with the expanding role of the federal government--and the powers of the presidency in particular.
The Framers didn't like the idea of political parties; they were wary of what they called "factions" creating divisions in the government. Despite this fear, parties became part of America's political landscape very early on--while George Washington was still president.
"Today, parties are essential for things to advance politically, and that complicates the original design," says Michael Gerhardt, a scholar at the National Constitution Center in Philadelphia. "The rise of political parties increases the opportunity and motivation for conflict."
The other big change is how powerful the government has become. For the first 75 to 100 years of America's history, the federal government did little.
"What we think of as national power is really a creation of the late 19th and early 20th centuries," says Sanford Levinson of the University of Texas Law School.
As the federal government took on a larger role in providing protections and services for citizens--everything from keeping food safe to old-age pensions--the presidency inevitably became more powerful in order to carry out those added functions. In effect, scholars say, Congress has delegated many of its responsibilities to the executive branch over the years, and that has tipped the balance of power among the branches in favor of the executive.
4. What happens if there's a conflict?
The first thing to understand is that conflicts between the branches, like those between President Trump and Congress, are nothing new.
"Lawmakers and presidents have found ways to resolve these disputes in the past," says former Senator Carl Levin, a Democrat from Michigan. "That's not to say Congress and the White House haven't battled over congressional inquiries."
When they do butt heads, there are several options: The two branches may fight it out politically, meaning they try to exert political pressure on each other in an effort to persuade. They can also turn to the third branch for a solution.
That's what happened during the Watergate scandal that eventually prompted President Richard Nixon to resign in 1974 (see "When Branches Clashed," below). When Congress was investigating Nixon's involvement in a cover-up of Watergate, they asked the White House to hand over recordings of Oval Office conversations. When the White House refused, Congress went to the courts. The Supreme Court ruled unanimously, in United States v. Nixon, that the president wasn't above the law and had to hand over the tapes to Congress.
The recordings showed that Nixon had obstructed justice--an impeachable offense.
Impeachment is the tool the Constitution provides for removing from office a president (or other federal official) who has committed "treason, bribery, or other high crimes and misdemeanors." It requires the House of Representatives to conduct hearings laying out the evidence and then to vote to impeach. The president is removed from office only if two-thirds of the Senate votes to convict him.
That has never happened. Two presidents have been impeached by the House--Andrew Johnson in 1868 and Bill Clinton in 1998--but both were acquitted by the Senate and remained in the White House. In Nixon's case, once it became clear that there was enough support in Congress to remove him from office, he resigned.
"Impeachment is the nuclear weapon that Congress always has," says John McGinnis, a law professor at Northwestern University in Illinois. "But there are dangers in using that weapon."
5. Is the system working?
The short answer is it's too soon to tell. As the power struggle between the House of Representatives and the Trump administration escalates, we're watching the Framers' system of checks and balances at work.
"The current situation is a stress test on the system," says Brettschneider of Brown University. "It's not yet obvious whether it's going to pass or fail."
There are a few possible routes out of the standoff. The "frump administration could decide to cooperate with Congress on its investigations. The courts could intervene and demand that the president comply with congressional oversight committees. And the House of Representatives could decide that impeachment is its only way out of the impasse. There are risks involved with all of these avenues.
"In any separation of powers situation, there's always a question of who's going to win power and who's going to lose some," the National Constitution Center's Gerhardt says. "Those are the stakes that are being fought over now."
How this clash will ultimately be resolved is still unclear. But one thing is certain: The 2020 presidential election is not that far off. And some scholars suggest that if the branches don't settle the fight, voters might wind up providing the solution.
"We can have a resolution of this in another way," says John Fortier of the Bipartisan Policy Center, in Washington, D.C. "The people can speak. The people can decide if the president is right or Congress is right."
MARCH 4, 1789
Date the new federal government began operating after ratification of the U.S. Constitution the previous year.
The president is elected to a four-year term and can serve no more than two terms.
435 representatives in the House serve two-year terms. 100 senators (two from each state) serve six-year terms.
The Supreme Court has nine justices who are appointed by the president and can serve for life.
WHEN BRANCHES CLASHED
Marbury v. Madison
The Supreme Court establishes its authority by declaring, for the first time, that a law passed by--Congress is unconstitutional--a power not explicitly--granted to the Court by the Constitution.
1937 FDR's Court-Packing Attempt
Frustrated by the Supreme Court having declared many of his New Deal initiatives unconstitutional, President Franklin Roosevelt (left) proposes expanding the Court to 15 justices from 9. Congress rejects the plan after months of debate.
1973 War Powers Act
As the Vietnam War--which Congress never officially declared--is winding down, Congress passes this legislation to limit the president's power to get the U.S. involved in armed conflicts without Congress's approval. Scholars say it hasn't worked as intended, as most presidents have found ways around it.
President Richard Nixon (right) resigns under threat of impeachment after an investigation into a burglary at Democratic Party offices in the Watergate complex in Washington, D.C., revealed abuses of power by the Nixon administration and attempts to cover up wrongdoing.
The Supreme Court
The nine justices on the nation's highest court could be called upon to decide how a power struggle between Congress and the president plays out.
Appointed by Donald Trump in 2017
Appointed by Barach Obama in 2009
Appointed by Barack Obama in 2010
Appointed by Donald Trump in 2018
Appointed by Bill Clinton in 1994
Appointed by George H.W. Bush in 1991
Chief Justice John Roberts
Appointed by George W. Bush in 2005
Ruth Bader Ginsburg
Appointed by Bill Clinton in 1993
Appointed by George W. Bush in 2006
LESSON PLAN: CRITICAL THINKING, CAUSE & EFFECT
NATIONAL PAGES 10-13 Lexile levels available online
Checks & Balances
The standoff between Congress and the Trump administration is intensifying. Is the Framers' plan for a separation of powers playing out as they envisioned?
Analyze the Article
1 Set Focus: Pose an essential question to guide discussion: In what ways is democracy fragile?
2 Read and Discuss: Have students read the article, marking key ideas and questions. Then ask them to answer the following questions, citing text evidence:
> When writing the Constitution, what were the Framers leery of while determining the role of the president? Why? (The Framers were leery of putting too much power in the hands of a president. The reason is that they had experienced being ruled by a tyrant king and had fought a revolution for independence. They did not want to form a new government that essentially created another king.)
> What is the system of checks and balances? (The system of checks and balances is the division of power between the three branches of the federal government and the ability of each branch to check, or curb, the power of the other two. For example, Congress passes laws, but the president can veto bills passed by Congress, preventing them from becoming law; the federal courts can rule whether laws signed by the president are unconstitutional.)
> What are some examples of checks and balances at work? (Answers will vary. Example answer: The Supreme Court declared many of President Franklin D. Roosevelt's initiatives unconstitutional, so he proposed expanding the Court to 15 justices. Congress rejected his plan.)
3 Core Skill Practice: Print or project the activity Making Connections (online only). Have students use the graphic organizer to explore causes and effects described in the article.
Extend & Assess
4 Writing Prompt
Are the checks and balances designed by the Framers still working? Explain your point of view in a brief essay.
5 Classroom Debate
Is the nation facing a constitutional crisis? Divide the class in two and have students back up their arguments with facts from the article and their research.
6 Quiz & Skills
Assess comprehension with the quiz (p. T9). Use Be the Editor (online only) to review grammar skills.
ONLINE RESOURCES upfrontmagazine.com
Print or project:
* Article Quiz (online and on p. T9)
* Making Connections (cause & effect; online only)
* Analyze the Cartoon (online and on p. T14)
* Be the Editor (grammar; online only)
* Political parties
CAUSE & EFFECT > ONLINE
1. The Framers write the Constitution.
2. After fighting a revolution to get rid of a king, the Framers are leery of putting too much power into the hands of the president.
3. The presidency becomes more powerful in order to carry out these added functions.
4. Congress sues to obtain the recordings of the Oval Office conversations that the White House is refusing to turn over.
5. The president is removed from office.
Test Your Knowledge
Choose the best answer for each of the following questions about "Checks & Balances." For the analysis section, refer to the article as needed.
1. What was the Framers' intention with the system of checks and balances?
a to keep political parties from becoming too powerful
b to prevent one branch of the government from becoming too powerful
c to ensure that the president would be the only official who could agree to treaties
d to create a way for the federal government to provide more services to citizens
2. Which is NOT an example of the system of checks and balances at work?
a The president vetoes a bill,
b A Supreme Court justice retires,
c The Senate refuses to approve a treaty,
d The federal courts block an executive order.
3. The Framers feared that political parties would --.
a prevent people from voting
b lead to too many impeachments
c create divisions in the government
d take over the job of congressional committees
4. What is impeachment?
a the way a congressional investigation begins
b the process Congress can use to remove
a president or other federal official from office
c the steps the president follows when appointing a federal judge
d the report the Supreme Court issues when ruling that a law is unconstitutional
ANALYZE THE TEXT
5. What is the main purpose of the first five paragraphs of the article?
a to tell why the United States has a constitution
b to convince readers that the Constitution is flawed
c to suggest that many forms of government face challenges that test their strength
d to explain why understanding the system of checks and balances is particularly important now
6. The author says, "But lurking in the back of their minds was the experience of being ruled by a tyrant, Britain's King George III." Which word best conveys that the author is telling about a concern the Framers had?
7. The author says, "The other big change is how powerful the government has become." You can reasonably infer that with "powerful," she is referring to an increase in --.
a gold reserves
b military strength
c responsibilities and functions
d the number of federal judges
8. John Fortier says, "The people can speak." He means: The people can settle the matter --.
a with speeches
b by writing letters
c by voting
d in the court system
IN-DEPTH QUESTIONS Please use the other side of this paper for your responses.
9. Pick one quotation in the article. How does the inclusion of this quotation help develop a central idea of the article?
10. The subtitle for the article asks: Is the Framers' plan for a separation of powers playing out as they envisioned? Share your opinion in response to this question. Support your ideas with evidence from the article.
QUIZ > PAGE T9
1. [b] to prevent one branch of the government from becoming too powerful
2. [b] A Supreme Court justice retires.
3. [c] create divisions in the government
4. [b] the process Congress can use to remove a president or other federal official from office
5. [d] to explain why understanding the system of checks and balances is particularly important now
6. [b] lurking
7. [c] responsibilities and functions
8. [c] by voting
Analyze the Political Cartoon
(Cartoon appears on p. 13 of the magazine.)
1. What does the tree represent? What does each branch represent?
2. Which branch is holding the chain saw? How has it used the chain saw?
3. What message is the cartoonist trying to send about the state of the system of checks and balances? (Note that the cartoon was originally published in 2013.) Do you agree or disagree with the cartoonist's message? Why?
Caption: Political parties have complicated relations between the three branches.
Caption: One cartoonist's take (from 2013) on the state of checks and balances. Do you agree?
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|Publication:||New York Times Upfront|
|Date:||Sep 2, 2019|
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