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Does The System Of Checks And Balances Work Anymore

Leo Migdal
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does the system of checks and balances work anymore

A look at how the United States’ system of checks and balances is designed to work and its current challenges. One of the fundamental concepts that students learn in a civics class is that our constitutional system is based on the principle of checks and balances. The Founding Fathers were wary of excessive power in the hands of one of the three branches of government and so they devised the idea of separation of powers — three co-equal centers of... The language of the Constitution is filled with examples of the checks and balances system of government as the power of the President is limited by the Congress (approves spending), the Congress is limited... The checks and balances system does not make for quick or complete public policy but is rather a means of slowing the process of governmental decision-making so that the result is based on compromise,... The President is supposed to work with Congress to fashion legislation that is agreeable to both political parties and represents the best effort to achieve unity, while the Congress is expected to ensure that...

Finally, the federal courts, if there are questions and concerns about the legislation, can view the law as within the boundaries of the Constitution. The checks and balances system is currently undergoing a major test of its ability to resolve policy issues and controversies as a divided and often angry Congressional majority and an aggressive and threatening President... The result is that issues of major importance are often transferred to the federal courts to seek a constitutionally appropriate answer to the dispute. Checks and balances have now been replaced by a litany of litigation and legal charges and countercharges as the only ways to place limits on governing power as intended by the Founding Fathers. It is fair to say that the traditional governing system is out of sync as the federal courts were never intended to be bombarded with legal suits and challenges and required to make quick... What is even more distressing is that the Supreme Court is divided along ideological lines, so that when a decision is rendered the result is a continuation of the toxic divide and a failure...

There is no final resolution of the specific policy dispute, but often a temporary pause in the checks and balances process. I have lived through the imperial presidency days, but this is something worse. Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, was quite a fellow. He was a judge. He was also a writer, an economist, a scientist, a historian, and a philosopher. He was one of the first to associate climate with the economics of nature.

(France, you will not be surprised, was his ideal match of climate and economy.) In 1748, writing anonymously, he published a book called The Spirit of Laws. The book was a revelation, especially to young politicians in Great Britain and its American colonies. The Vatican was less enthusiastic; it put it on the Index Librorum Prohibitorum, a list that much later did not include, among other works, Mein Kampf. In The Spirit of Laws, CLdS, BdLBedM (What is with these French names? Did they all carry business cards the size of road maps?), posits the theory of the separation of powers as a necessary construct for the preservation of liberty, an idea that John Locke first... Montesquieu wrote:

This idea percolated vigorously in the mind of a rising Virginia politician named James Madison, who set about the task of designing a government for the United States that would not fall apart like... In Federalist 51, Madison’s debt to this long-dead philosophe is plain. Madison set up an endless, but discreet, brawl between gentlemen. One institution would exist in tension with the other two, and each one would jealously guard its prerogatives. The experiment would work best if Congress reined in the executive, and the executive was the last safeguard against a legislature gone mad. (Like, for example, the current monkey-house presided over by Speaker Mike Johnson.) And the judiciary would keep an eye on both of them to make sure that the liberties of the people were not...

The Constitution is written as a set of boundaries for political conflict, a compendium of rules for fighting as surely as that set down by the Marquess of Queensbury. The system of checks and balances in the U.S. is central to how our government works. It ensures no single branch gains too much power. It supports democracy. It protects individual freedom.

Here is a detailed, clear explanation of how the system of checks and balances works in the U.S., why it matters, how each branch interacts, what examples exist today, and what challenges it faces. The Founders wanted a system where the government could act—and yet would be limited. The Constitution divides power among three branches.As one source puts it: “The system of checks and balances provides each branch of government with individual powers to check the other branches and prevent any one... Enlightenment thinkers such as Baron de Montesquieu warned of concentrated power. Another key quote, from James Madison: “If men were angels, no government would be necessary … In framing a government which is to be administered by men over men, the great difficulty is this: You must first enable the government...

Here is a quick overview of the three branches and their broad roles: The legislative branch—United States Congress (consisting of the House of Representatives and the Senate)—makes the laws. It holds the “power of the purse” (controls spending) and declares war. For over two centuries, American democracy has relied on a deliberately constructed system of checks and balances. Though often slow and imperfect, this “elaborate, clunky machine,” as one historian put it, has generally prevented any one branch of government from overpowering the others even under pressure from ambitious presidents. In recent years, Donald Trump tested this system like never before, issuing sweeping executive orders, slashing agency funding, and openly challenging court rulings.

While the constitutional framework has largely held, experts warn its success depends not just on structure but on leaders’ willingness to exercise restraint. Here’s a look at how US democracy has weathered both past and present power struggles. The first and most defining assertion of constitutional boundaries came in 1803, with Marbury v. Madison. Outgoing President John Adams had appointed William Marbury as a justice of the peace, but his successor, Thomas Jefferson, and Secretary of State James Madison declined to finalise the commission. When the case reached the Supreme Court, Chief Justice John Marshall ruled that Madison had acted improperly, but also declared the law underpinning the suit unconstitutional.

In doing so, Marshall denied the request and established judicial review—the court’s power to strike down congressional laws that exceed constitutional bounds. In 1791, debates raged over Congress’s authority to charter a national bank. Although Alexander Hamilton’s Federalists prevailed, President Andrew Jackson later opposed the bank’s recharter in 1832, vetoing it despite congressional approval. His decision reflected growing populist sentiment against centralised economic control and highlighted the president’s veto power as a significant legislative check. During the Civil War, President Abraham Lincoln suspended habeas corpus, allowing the detention of individuals without trial. Although this move was later ruled unconstitutional by Chief Justice Roger Taney, Lincoln defended it as necessary to preserve the Union.

Congress later retroactively approved his actions, reaffirming the fluidity of executive power in wartime. At an NYU Law Forum on October 22, former government officials and constitutional law scholars examined the current state of the American system of checks and balances designed to restrain the presidency. They paid particular attention to how political hyper-partisanship and the expansion of executive authority are challenging that system. Wherever they fell on the political spectrum, the panelists expressed serious concerns about how American politics and its delicate, complex balances are trending. Titled “All the President’s Power: What’s Left of Checks and Balances?” and co-hosted by the Reiss Center on Law and Security, the event was moderated by Dean Emeritus Trevor Morrison, Eric M. and Laurie B.

Roth Professor of Law. The panel featured Bob Bauer, professor of practice and distinguished scholar in residence and former White House counsel; Professor Gillian Metzger of Columbia Law School, former deputy assistant attorney general in the US Department... The panelists largely agreed that presidential power across multiple administrations has increased due in large part to Congress’s failure to fulfill its constitutional role. Bauer argued that hyper-partisanship has caused Congress to “not police institutional boundaries,” leading members to prioritize their political party over defending their institutional prerogatives. A major focus of the discussion was presidential use of impoundment, or the refusal to spend funds appropriated by Congress. Metzger said that the Trump administration’s use of impoundment represents a “different magnitude and something we really haven’t seen before.” She noted that when norms of cooperation and consultation dissipate, it becomes difficult to...

The power of the purse, Metzger argued, is “really essential to how government operates and to preserving constraints on the executive.” The panel expressed skepticism about the judiciary’s ability to effectively police executive overreach. McConnell noted that the famous three-part framework set forth by Justice Robert Jackson in the 1952 Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer, which evaluates presidential authority based on what authority Congress has granted, is “virtually useless” in litigation. McConnell suggested that the president invariably claims to derive authority from “some vague language and some old statute.” Additionally, judicial action is often constrained by procedural issues, including the doctrine of standing—whether a party...

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