Checks and Balances Between the Branches of Government

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.

Modules for this Standard Include:

  1. INVESTIGATE: Checks and Balances, Presidential vs. Parliamentary Systems, and Powers of the U.S. Presidency
    • SPECIAL TOPIC BOX: Strongmen and Dictatorships as Forms of Government
  2. UNCOVER: The War Powers of the President
  3. ENGAGE: When, and For What, Should a President Be Impeached?
    • MEDIA LITERACY CONNECTIONS: Writing an Impeachment Press Release

    1.INVESTIGATE: Checks and Balances, Presidential and Parliamentary Systems, Powers of the U.S. Presidency

    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:

    Presidential and Parliamentary Systems of Government

    Writing in The Nation in early 2021, commentator Alexis Grenell declared Joe Biden should be the last American President, urging the U.S. to shift from a presidential to a parliamentary system of government. Although the U.S. has the longest running Presidential system in the world, Grenell wrote that system had become too polarized and dysfunctional to continue.

    Presidential (as in the United States, Mexico, Brazil and the Philippines) and Parliamentary (as in Great Britain, Canada, Japan and Italy) are the two major types of government in democracies in the world today.

    Presidential systems are headed by a executive elected by the people who is independent of the legislative branch (Congress in the U.S.). Parliamentary systems are headed by a Prime Minister who is chosen by the legislative branch (Parliament in Great Britain).

    The U.S. President is elected for a 4-year term, and as demonstrated by the Trump era, extremely hard to remove from office through impeachment. A Prime Minister has not limit on how long they can serve, but can be removed at any time following a vote of no confidence by the Parliament.

    The U.S. presidential system is dominated by two major political parties who vie for control of the government. Parliamentary systems have multiple political parties and the Prime MInister must create coalitions among them in order to govern. This encourages compromise by working together to achieve political goals.

    For more information, go to Parliamentary System and Presidential System from Annenberg Classroom, 2021).

    Special Topic Box: Strongmen and Dictatorships as Forms of Government

    Dictatorship and authoritarianism are the political opposites of democratically-based presidential and parliamentary systems of the government. The 20th century and the beginning of the 21st century have seen dictators and tyrants come to power across the globe.

    Student demonstration against the Military Dictatorship.
    Student demonstration against the Military Dictatorship in Brazil | Public Domain

    In her book Strongmen: Mussolini to the Present, historian Ruth Ben-Ghiat (2020) documents three recent eras when dictators rose to power:

    1. Fascist takeovers (1919 to the end of the World War II) marked by the reign of Mussolini and Hitler.
    2. Military coups (1950-1990) that brought to power men like Muammar Quddafi (Liyba), Mobuto Sese Seko (Zaire), and Augusto Pinochet (Chile).
    3. New authoritarians (1990 to present) who get elected democratically and then set out to dismantle democratic institutions; examples include Silvio Berlusconi (Italy) and Vladimir Putin (Russia).

    Historian Kenneth C. Davis (2020) has also examined the rise of dictators and their threats to democracy in Strongman: The Rise of Five Dictators and the Fall of Democracy, a book for young adult readers about the rise of Benito Mussolini, Adolf Hitler, Joseph Stalin, Mao Zedong, and Saddam Hussein.

    Some dictators in the world today claim to be democratically elected, but they are not. North Korea, for example, is formally listed as the Democratic People's Republic of North Korea. Its constitution states the country is a "dictatorship of people's democracy," but it is ruled by one strongman leader, a member of a family that has maintained political power since 1948.

    Suggested Learning Activity

    • Select a country from the list of 193 United Nations countries and investigate their government by searching a database maintained by Global Edge from the International Business Center at Michigan State University.
    • Conduct an Internet search about the country: 
      • Does it have a presidential, parliamentary, or authoritarian system of government? 
      • How much actual democracy and democratic government is there in the country?
    • Write a state of the union speech as if you were the leader of the country you chose. Include in the speech a discussion about how your country's structure of government is influencing the goals of citizens, the country as a whole, and the world (see the United Nation's Sustainable Development Goals). Bonus points for presenting the speech on TikTok, Snapchat, or another form of media. 

    Learning Resources

    The Powers of the U.S. 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 Vladimir 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 and the Doctrine of Executive Privilege

    Historians and political scientists broadly agree that the power of the President has been expanding dramatically 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, para. 5).

    As President, Donald Trump and his advisors, including Attorney General William Barr, claimed virtually unlimited Presidential power, citing what is known as the unitary executive theory. Under this theory, the President is at the top of a institutional hierarchy of power, rather than being the head of one of the three co-equal branches of government.

    Using the unitary executive 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.

    The Supreme Court has also limited the President's use of executive privilege, a policy that says a President and his close advisors do not have to disclose to Congress or the courts documents, testimonies or discussions they had concerning national or international policies.

    The extent of executive privilege is not absolute.

    Suggested Learning Activities

    • Write a Constitutional Policy Statement about Pardons
      • 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 Military 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 against the United States” (What the AUMF Is and Why You Should Care, Bipartisan 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.
    • Additional Resources

    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.

    Just days before his term was to end, Trump was impeached for a second time on January 13, 2020 for "incitement of insurrection" following a bloody attack on the Capitol by a mob of the President's supporters.

    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 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 peculiar 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?

    Media Literacy Connections: Writing an Impeachment Press Release

    Press Release is an official statement provided to the media by an individual or organization. Its purpose is to provide information in a short, simple, highly readable format.

    White House West Wing - 1st Floor with the Press Briefing Room highlighted
    A floorplan of the first floor of the West Wing of the White House | Public Domain

    In politics, a press release also serves as a way to promote one’s side of an issue as favorably as possible within the boundaries of facts. The White House, on behalf of the President as well as individual politicians, political party organizations, and political interest groups, constantly issues press releases stating their positions and actions on the issues of the day.

    In this activity, you will write an Impeachment Press Release for one of the Presidential Impeachments in U.S. History. You can write a statement from either the President who is being impeached, the Impeachment Managers from the House of Representatives who are presenting the case against the President, or both.

    Suggested Learning Activities

    • State Your View: A President or a King
      • In a ruling in Committee on the Judiciary v. McGahn (2019), U.S. District Judge Ketanji Brown concluded: “The primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”
      • 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?” 
    • 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

    • Evaluate the Media
      • Select one of the Presidential Impeachments in history.
      • Look for newspaper articles, news clips, magazine covers, and other artifacts about the impeachment. Try to find examples from media outlets from all sides
      • What perspective did the media outlet present? Did they take the side of the President? Why or why not?
      • How did the media present information? What text did they share? What visuals did they select? 
      • How did the way the media portrayed the impeachment influence peoples' perspectives and understandings? (look for opinion articles, comments on news articles, and/or social media posts to justify your response)

    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.

    This content is provided to you freely by EdTech Books.

    Access it online or download it at https://edtechbooks.org/democracy/relationship.