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  • Writer's pictureLuke Gialanella

Checks and Balances and the Separation of Powers

During the drafting of the Constitution, the Founding Fathers avoided creating another totalitarian regime like there was in the United Kingdom. In the United Kingdom, one man, the King, could control all the laws, all the taxes, and use that to profit and become rich at the expense of the Americans. This excessive use of executive power was the basis for the American Revolution. When Colonel Lewis Nicola offered George Washington the position of King of this new America, of this new country, he refused because he did not want a totalitarian state with a despot ruling over the masses like the King. There were some like Alexander Hamilton and John Adams, who believed in a theory dubbed the unitary executive theory, which is a theory of constitutional law that believes the President has the power to control the entire executive branch. Alexander Hamilton believed that if a law had to be pushed through all these different legislative and judicial bodies, that no law would be passed to have any significance or magnitude. Others, like Thomas Jefferson and James Madison, believed that powers should be reserved for the states instead. This disagreement led to conflict when drafting the Constitution at the Constitutional Convention, where one side believed in a stable federal government, and the other believed in an active state government, who believed that the executive branch should not have so much power like the King did in the United Kingdom. Together they settled for what is called the separation of powers, which means that the federal government was the highest power, but the Constitution would split it into three branches of government.

The first branch was the executive branch, composed of the President, the Vice President, and the idea of a Cabinet, which would be appointed by the President, but would have to be passed through the legislative branch of government, the second branch of government, which was the body known as Congress composed of two separate bodies, the Senate and the House of Representatives, which would pass laws and confirm Presidential appointments to the Cabinet and the Supreme Court. The Supreme Court was a part of the third branch of government, the judicial branch of government, which is the justice branch of government, which would declare laws that Congress adopted were unconstitutional. There was this system that the three branches would check each other's powers. For instance, whereas Congress can pass a law, the President can veto that law, and the Supreme Court could deem that law unconstitutional. However, Congress could rebuke that Presidential power, so if they had a 2/3 majority in their body, they could override that veto. This veto override is very rare, but Congress does have the power to override vetoes. A broad compromise was that the Constitution would delegate all powers not given to the federal government to the state governments. A real executive power that the President holds, a power that has been debated by Constitutional scholars around the country, is the power of the executive order, which is a law that Congress does not have to pass. The President would sign a document that would make a law. However, it would not be permanent, such as laws made by Congress, but the next President who came into office could overturn it. This power has mainly in the past been reserved by past Presidents for deeming national holidays and other formal and unimportant events, but under our new President, this power has been used to make unitary decisions that would not have to be passed by representatives and committees through a divided and polarized Congress. These are all laws that the President would know are not able to get passed Congress so that they would use the power of the executive order. However, both the judicial branch and the legislative branch can revoke executive orders. For instance, if the President decrees an executive order stating that no travel should be allowed from a particular country, Congress has the power to make a law that states travel should be allowed from all countries, and an executive order cannot rebuke a law passed by Congress. There have been no notable instances where a crisis has occurred in the checks and balances system until now. There is a battle between the executive and legislative branches of government right now on whether the White House has the right to not participate in an impeachment inquiry.

In conclusion, many lawmakers and constitutional lawyers are debating our checks and balances system. Now is the time to be educated about this system. For more information, see the GOVLEARN PDFs titled "Introduction to Government," "The Presidency," "Impeachment," "The Senate," "The House," and "The Supreme Court."

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