3.2

Examine the Relationship of the Three Branches

Standard 3.2 Examine the Relationship of the Three Branches (the Checks and Balances System)

Examine the interrelationship of the three branches (the checks and balances system). (Massachusetts Curriculum Framework for History and Social Studies) [8.T3.2]

FOCUS QUESTION: How Does the System of Checks and Balances Function Between Branches of United States Government?

Infographic displaying the checks and balances of the 3 branches of government
"Separation of Powers among authorities" by Vanesag is licensed under CC BY SA 3.0

In theory, the system of checks and balances is designed to ensure that no single branch has too much power over the other branches. As James Madison wrote in Federalist Number 51 (1788), “the power surrendered by the people is first divided between two distinct governments [the Federal government and the governments of the several states], and then the portion allotted to each subdivided among distinct and separate departments [the executive, the legislative, and the judicial].”

How does the system of checks and balances actually function in American government? The modules for this standard explore this question in terms of what checks exist between branches, what powers does the President and the Congress have to conduct wars, and for what can and should a President be impeached.

    1.INVESTIGATE: Checks and Balances Between the Branches and on the Powers of the President

    The system of checks and balances is designed so each branch can respond to the actions of the other branches. In this context, a balance of powers means each branch can “check” or stop something from happening. Since each branch has separate powers within the government, each branch can provide a check on the actions of the other branches.

    The Legislative branch has the following checks and balances on the other branches:

    The two houses of Congress (Senate and House of Representatives) also have checks and balances on each other:

    The Judicial branch has the following checks and balances on the other branches:

    The Executive branch has the following checks and balances on the other branches:

    The Powers of the Presidency

    The President of the United States is often referred to as the most powerful person in the world. although some believe that in 2020/2021, Russian President Vladmir Putin or China’s leader Xi Jinping are more powerful. It is true that any U.S. President has an impressive collection of powers—both those given to the office by the Constitution and those a President gains from what one political scientist had called “the subjective views of others” (Neustadt, 1990, p. x). In this respect, Presidents have power in part because the American people broadly believe those powers exist.

    For, as political scientist Matt Glassman (2018) has stated: "Presidents compete with numerous actors — Congress, the courts, interest groups, political appointees in the departments and agencies, and career civil servants — for influence over public policy. The president must rely on his informal ability to convince other political actors it is in their interest to go along with him, or at least not stand in his way."

    Taken collectively, the powers given to the President by the Constitution combined with the ways a person in that office can energize public opinion to support policies give a President enormous influences over national and state government and the country as a whole. 

    Obama delivers State of Union address

    President Barack Obama delivers his State of the Union address, Feb. 12, 2013 
     "2013 State of the Union Address" by Lawrence Jackson | Public Domain

    What powers does a President actually have?  

    Limits on Presidential Power

    Historians and political scientists broadly agree that the power of the President has been expanding in recent decades. In 2019, a group of Harvard Law School faculty concluded that modern Presidents, notably the three most recent, have "used lessons from the past as blueprints to expand their capacities," including choosing the leaders of the growing number of the government's executive agencies; issuing executive orders to bypass lengthy legislative processes; and using social media to build support for their policies among voters (Presidential Power Surges, Harvard Law School Bulletin, Summer 2019).

    As President, Donald Trump and his advisors including Attorney General William Barr have claimed virtually unlimited power, citing what is known as the unitary executive theory. Under this theory, the President, rather than being the head of one of the three co-equal branches of government, is at the top of a institutional hierachy of power. Using that theory, Trump refused to release his tax records to Congressional committees or federal prosecutors in New York who were looking into possible campaign law violations by the President and his election committee.

    In two notable cases, Trump v. Vance and Trump v. Mazars, the Supreme Court rejected the claim that the President did not have to respond to legal subpoenas for information with Chief Justice John Roberts declaring: "Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need" (Trump v. Mazars LLP, 2020, p. 21). These decisions establish clear limitations on Presidential power.

    Media Literacy Connections: Dialog and Debate

    Dialog and Debate:

    Watch:

    • Frost/Nixon, (Netflix), a 2008 Hollywood film and how it reflects on a series of candid interviews unfolded unheard facts and how it changed the public opinion.

    Additional Resources:

    Suggested Learning Activities

    • Write a Constitutional Policy Statement
      • Should the President Have the Sole Power of Pardons?
        • When should individuals receive pardons?
        • What steps are needed to ensure that there is fairness and justice in the pardon process?

    Online Resources for the Powers of the Presidency

    2.UNCOVER: The War Powers of the President

    The President is the Commander in Chief of the military and although the Constitution states that Congress has the power to declare war and raise and support the armed forces (Article I, Section 8), Presidents have significant war powers. Presidential war powers have expanded dramatically since the end of World War II.

    Lincoln and McClellan

    President Abraham Lincoln and General George B. McClellan in the general's tent
    at Antietam, Maryland, October 3, 1862
    Lincoln and McClellan 1862-10-03” by Alexander Gardner | Public Domain

    In Presidents of War (2018), historian Michael Beschloss explains that “since the start of the Republic, Presidents of the United States have taken the American people into major wars roughly once in a generation” (p. vii). He then examines eight Presidents who entered wars and one who had the opportunity to do so, but did not. The Presidents and their wars are:

    It was Thomas Jefferson who avoided war with Britain in 1807 over the Chesapeake Affair and the issue of “impressment” (taking individuals into military service against their will without notice) of sailors on American ships.

    While the Constitution gives Congress the sole power to declare war and raise and support the armed forces (Article I, Section 8), there has been no official Congressional declaration of war since 1942. Here is a listing of all Official Declarations of War by Congress from United States Senate website.

    Gru Emblem
    Emblem of the GRU, the Miltiary Intelligence Service of the Russian Military
    Public Domain

    In recent years, Presidential war powers have been expanded by the AUMF (Authorization for Use of Military Force Against Terrorists) passed just after the September 11, 2001 attacks on the World Trade Center and the Pentagon. An AUMF allows the President to utilize “all necessary and appropriate force . . . to prevent future acts of international terrorism agains the United States” (What the AUMF Is and Why You Should Care, Biparistan Policy Center, April 18, 2018). Although the AUMF was initially intended to be used against al Qaeda and the Taliban, it has been used dozens of times in 14 countries, including the Trump Administration’s use of a missile strike to kill an Iranian general in Iraq on January 2, 2020.

    Suggested Learning Activities

    • Write a Public Policy Recommendation
      • To what extent should Congress control the war powers of the President?
      • When can a President act militarily without consulting Congress?
    • Learn Online
      • Nixon and the War Powers Resolution from the Bill of Rights Institute has learning activities centered on the War Powers Resolution, passed in 1973 over President Richard Nixon’s veto. This resolution requires the President to consult with Congress before committing U.S. troops into combat or potential combat situations. Presidents from both parties have held that the resolution unconstitutionally limits the power of the executive branch.

    3.ENGAGE: When, and For What, Should a President Be Impeached?

    On December 18, 2019, the House of Representatives passed two articles of impeachment against Donald Trump: Article 1: Abuse of Power and Article 2: Obstruction of Congress (READ: Articles of Impeachment Against Donald Trump). On February 5, 2020, Donald Trump was acquitted by the U.S. Senate on both impeachment articles. It was just the fourth time in United States history that the Congress engaged in an impeachment of a sitting President.  

    Word: Impeachment
    Image on Pixabay

    Previously, impeachment proceedings had been initiated against Andrew Johnson (1868), Richard Nixon (1974) and Bill Clinton (1998). Neither Johnson or Clinton was convicted and both remained in office as President; Nixon resigned the Presidency before the House could vote on the impeachment charges against him. As author Brenda Wineapple (2020) states in her study of the post-Civil War trial of Andrew Johnson, each case demonstrates the complexity that impeachment is "designed to remedy pecuilar situations for which there are no remedies" (p. 419).

    In theory, impeachment is intended to serve as a way to remove from office someone who is abusing their power through corrupt actions and activities. Yet, neither the Johnson trial nor the others that followed have resolved the fundamental constitutional question: Was "impeachment to be understood as a judicial matter" or "was impeachment designed to punish malfeasance in office" (Wineapple, 2020, p. 417).

    Procedurally, impeachment is a process where, according to Article II, Section 4 of the Constitution, “a President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” In addition to Presidents, 17 other officials—one senator, one Cabinet secretary and 15 judges—have been impeached in U.S. history. Business Insider has a full list of those federal officials who were impeached.

    The word "impeachment" means ‘accusation’ or ‘charge’. The process happens as follows: Any member of the House of Representatives can suggest the body begin an impeachment inquiry. The Speaker of the House then decides whether to proceed forward with that inquiry or not. The House can impeach based on a vote by a simple majority of its members (50 percent plus 1 or 218 out of 435 members). The impeached person goes to trial, meaning a hearing before a jury in the U.S. Senate (Gertner, 2020). The Senate conducts an impeachment trial, presided over by the Chief Justice of the Supreme Court. A super majority (67 out of 100 members) is needed to convict and remove a President or other impeached official from office.

    Impeachment was part of English law long before its inclusion in the United States Constitution, notes constitutional scholar Frank O. Bowman III (2019). The phrase “high crimes and misdemeanors” does not just mean illegal actions, but corrupt and abusive activities on the part of an elected or public leader, what Alexander Hamilton called an “abuse or violation of some public trust” (The Federalist Papers: No. 65).

    Impeachment proceedings against Donald Trump followed from a complaint by an intelligence community whistleblower who believed the President had engaged in illegal conduct by trying to coerce a foreign leader (Ukraine’s President Volodymyr Zelensky) to aid Trump’s reelection campaign. Federal campaign finance laws prohibit foreign contributions to politicians or their campaigns. In a July 25, 2019 phone call and during subsequent actions, President Trump appeared to withhold Congressionally-approved military aid to Ukraine contingent on that country beginning a corruption investigation into former Vice-President Joe Biden and his son, Hunter. Impeachment advocates contended the Ukraine phone call and the military aid delay violated that law; supporters of the President said it did not.

    Constitutional and legal scholars agree that impeachment in the United States is a political process, as much, if not more than a legal process that happens only rarely at times in history when “our settled expectations about the Constitutional order are shaken” (Bowman, 2019, p. 6). In that context, every member of our democratic society is faced with having to answer when, and for what, should a President be impeached?

    Suggested Learning Activities

    • State Your View:  
      • Answer the following question posed by Stanford University law professor Michael McConnell (2019): “How can we have a President who is powerful enough to do all the things we expect from a President, but not one who is effectively a king?” 
      • In a ruling in Committee on the Judiciary v. McGahn (2019), U.S. District Judge Ketanji Brown stated: “The primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”
    • Research and Draw a Conclusion:  
      • In an editorial, The New York Times (2019, para. 26) stated that impeachment should happen when a President or other public officials violate the public trust by placing “private above public interest.”  
      • What other times in U.S. history did Presidential Administrations violate the public trust? Research one the following examples and decide if the President’s actions were impeachable and explain how you drew your conclusion.
        • Andrew Jackson and the Trail of Tears
        • James Buchanan and the Dred Scott Decision
        • Andrew Johnson and Opposition to Reconstruction
        • Warren Harding and the Depot Dome Scandal
        • Ronald Reagan and the Iran/Contra Affair
        • Richard Nixon and the Watergate Scandal

    Online Resources for Presidential Impeachment

    Standard 3.2 Conclusion

    The Constitution established a systems of checks and balances so that no part of the American government would dominate or control the other parts. INVESTIGATE identified how each branch can check or respond to the actions of the other branches. UNCOVER examined the war-making powers of the President, and how those powers have expanded since World War II. ENGAGE asked when, and for what, can a President be impeached.