Table of Contents

2.3 Checks and balances

Within the national government there is no neat decision-making hierarchy, as each of the branches of government exercises power over the other two. This is due to the system of checks and balances. These are mechanisms through which each branch of government is able to participate in and influence the activities of the other branches. Major examples include the presidential veto power over congressional legislation, the power of the Senate to approve presidential appointments, and judicial review of congressional enactments¹³.

To make it clear, let’s see the table.

Legislative over Executive

• Congress can override presidential veto
• Congress can remove the president through impeachment
• Senate can reject president’s appointments and refuse to ratify treaties
• Congress can conduct investigations into president’s actions
• Congress can refuse to pass laws or provide funding that president requests

Legislative over Judicial

• Congress can change size of federal court system and number of Supreme Court justices
• Congress can propose constitutional amendments
• Congress can reject Supreme Court nominees
• Congress can impeach and remove federal judges
• Congress can amend court jurisdictions
• Congress controls appropriations 

Executive over Legislative

• President can veto acts of Congress
• President can call special sessions of Congress
• President carries out, and thereby interprets, laws passed by  Congress
• Vice president casts tie-breaking vote in the Senate

Executive over Judicial

• President appoints Supreme Court justices
• President nominates federal judges
• President can pardon those convicted in federal court
• President can refuse to enforce the court’s decisions

Judicial over Executive

• Judges, once appointed for life, are free from controls from the executive branch
• Court can declare executive actions unconstitutional
• Court has the power to issue warrants
• Chief Justice presides over impeachment of president

Judicial over Legislative

• Court can declare laws unconstitutional.
• Chief Justice presides over Senate during hearing to impeach the president¹⁴

As you can see there are many ways that the Constitution balances power. There are many examples of checks and balances at work.

• After the Civil War Congress overrode over 20 Presidential vetoes.
• In 1935 and 1936 the Supreme Court declared the NIRA (National Industrial Recovery Act) and then the AAA (Agricultural Adjustment Administration) (two New Deal programs passed during the Roosevelt administration) unconstitutional.
• In 1918 Congress refused to ratify the Treaty of Versailles, a peace treaty ending World War I that President Wilson had worked very hard on.¹⁵

 

Now that we have understood what federalism is, it is time for us to pass to the main points of discussion. First let’s analyse the interaction between the states and federal government, which is a bit complicated. One can't say that federal government limits the powers of the states, because there are cases when states are much powerful, on the other hand there were times when states really faced some restrictions. Here are examples of both cases.

• President Johnson’s Voting Rights Act of 1965: African Americans in the South faced overwhelming obstacles to voting. Despite the Fifteenth and Nineteenth Amendments to the U.S. Constitution, which had enfranchised black men and women, southern voter registration boards used poll taxes, literacy tests, and other bureaucratic impediments to deny African Americans their legal rights. Southern blacks also risked harassment, intimidation, economic reprisals, and physical violence when they tried to register or vote.¹⁶
• Separate but equal was a legal doctrine in United States constitutional law that justified systems of segregation. Under this doctrine, services, facilities and public accommodations were allowed to be separated by race, on the condition that each group's public facilities was to remain equal. The American Civil War (1861–1865) policy yielded the cessation of legal slavery in the U.S., however not the intent of a different class of citizens. Before the end of the war, the Morrill Land-Grant Colleges Act (Morrill Act of 1862) was passed to provide for federal funding of higher education by each state with the details left to the state legislatures. Following the war, the Fourteenth Amendment to the United States Constitution guaranteed equal protection under the law to all citizens, and Congress established the Freedmen's Bureau to assist the integration of former slaves into Southern society. After the end of Reconstruction in 1877, states enacted various laws to undermine the equal treatment of African Americans, although the 14th Amendment as well as federal Civil Rights laws enacted during reconstruction were meant to guarantee it. However, Southern states contended that the requirement of equality could be met in a manner that kept the races separate. After the end of Reconstruction, the federal government adopted a general policy of leaving racial segregation up to the individual states.¹⁷
• Traditionally, the federal government didn’t have its own definition of marriage. When the Defense of Marriage Act was passed in 1996, a marriage was defined as a union of a man and a woman. So, no act of the federal government recognized same-sex marriage. Though Federal Marriage Amendment should have prohibited the recognition of same-sex marriages, it was approved in 2006 in several states (Massachusetts, Connecticut, Iowa, Vermont, New Hampshire) through legislation.
• The United States presidential election of 2000 was a contest between Republican candidate George W. Bush and Democratic candidate Al Gore. Bush narrowly won the November 7 election, with 271 electoral votes to Gore's 266.

The election was noteworthy for a controversy over the awarding of Florida's 25 electoral votes, the subsequent recount process in that state, and the unusual event of the winning candidate having received fewer popular votes (50,456,002) than the runner-up (50,999,897). It was the closest election since 1876 and only the fourth election in which the electoral vote did not reflect the popular vote.¹⁸

• McCulloch v. Maryland: In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax.

The case presented two questions: 1) Does Congress have the power under the Constitution to   incorporate a bank, even though that power is not specifically enumerated within the Constitution? 2) Does the State of Maryland have the power to tax an institution created by Congress pursuant to its powers under the Constitution?

In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers.¹⁹

• In October of 2000, President Clinton signed federal legislation (the 0.08 Blood Alcohol Concentration Bill) requiring states to set 0.08 BAC as the legal limit while driving. States were given until October 1, 2003 to pass 0.08 BAC legislation or lose 2% of their federal highway construction funds. Specifically, failure to pass such a law resulted in a 2% reduction in federal highway appropriations in 2004. Each subsequent year of non-compliance carried an additional 2% reduction in highway funds, culminating in an 8% reduction in funds by 2007. However, any state that adopted the 0.08 BAC threshold by 2007 would receive the highway funds that it had lost between 2004 and 2007. At the time that the federal legislation was passed, 18 states and the District of Columbia had enacted 0.08 BAC legislation²⁰.

From examples it becomes clear that in some cases states have enough power to act freely, while in other cases there are strong conditions and limitations on the powers of the states.

Let’s pass to the next point and see whether federalism limits the powers of national government or not.

In the American federal system, there are limitations on national government's ability to carry out its policies through executive branch of state governments. For example, in Printz v. United States, 521 U.S. 898 (1997) the Court held that the national government could not directly require state law enforcement officers to conduct background checks under the Brady firearms legislation. And yet, there are significant advantages in a federal system to obtain state assistance in the local implementation of federal programs. Implementing such programs through national employees would significantly increase the size and intrusiveness of the national government. Moreover, local implementation may assure that these programs are implemented in ways that take local conditions into account²¹.

For this reason, Congress has often avoided adoption of completely nationalized programs by one of two devices. In the first, Congress creates a delivery system for federal programs in which the national government encourages local implementation of it by providing significant matching funds. Example of this is the Aid to Families with Dependent Children (AFDC) program financed largely by the Federal Government.

In the second form, the Congress states that it will take over the regulation of an activity at the national level, unless the State itself implements its own program of regulation meeting minimum federal standards.

It is obvious that national government faces some restrictions, but this is done for the sake of the country. All these limitations, division of powers, checks and balances are to control the country, so that there would not be a dominant government or a dominant branch.

One more point for discussion is whether dual federalism defines the US federal structure. The answer may be both yes and no, because it depends on many factors: who the president is, from which party, as conservative party supports dual federalism, while republican party is for cooperative, etc.

As we have already seen in the chapter I, dual federalism was longer in action than other types. From this one may say that it was a good one and it defines the US federal structure. However, there were cases when dual federalism couldn't solve a problem, as the interference of national government was needed, and cooperative federalism came to help. The example of this is the Great depression. The Great Depression of the 1930s and the programs of the New Deal eventually brought the dual federalism theory to an end. The states were helpless to solve the terrible economic crisis facing the American people as a whole. Since the theory of dual federalism acted to limit national power, either it or the New Deal would have to go. In the end, President Franklin D. Roosevelt ensured that his New Deal's policies would triumph. Under the New Deal he enacted various emergency relief programs designed to stimulate economic activity. So, through the regulation the national government extended its power and control over the states. This example shows one of the advantages of cooperative federalism.

The best and correct answer, however, will be found if we analyse today’s situation, i.e. dual or cooperative federalism is supported by today’s president Barack Obama? 

In 2009 NYT contained an enlightening article on the Obama administration's view of federalism.   The Times described the approach as "progressive federalism" or "cooperative federalism."  As support, the Times offered Obama's pledge to allow states to create emissions standards that were more stringent than those imposed by the federal government.   The Obama administration is signaling that state regulations may very well complement federal regulations, and they can both work together to achieve important goals.²²

This means that the US federal structure today is likely to be defined by cooperative rather than dual federalism. 

                                             
 
 
 
 
 
 
 
 
 

                                                         Conclusion

Summing up the paper we’ll mention the most important points.

In the first chapter we learned what federalism is: it is the relationship between the states and the federal government, how it was evolved and which are the main types of it: dual, cooperative, regulated, new. We also spoke about the advantages of federalism, which were: keeping government close to people, providing training grounds, encouraging experimentations, etc.

In the second chapter we spoke about the division of powers, the system of checks and balances and saw how the country is governed. Under the division of powers we distinguished between powers delegated to national government (expressed, implied, inherent), powers of the states (reserved), powers denied to national government, powers denied to the states, and concurrent powers. Speaking about checks and balances we listed the powers of each branch over the other two and gave examples of the system in action.

The rest of the second chapter was dedicated to the analysis and examples of federalism. We discussed three debatable questions the answers to which could not be simply yes or no. When we spoke about the interaction between national government and the states, the question was whether powers of the states are limited by national government. We gave examples that proved the controversial core of the matter. In several examples we saw that states are obliged to act in way national government tells, while in other examples they were powerful and free in their actions.

As we discussed the question concerning the limitation of national government’s power by federalism, we saw that, yes, there were limits placed on national government, but in favour of the country, like in case with the division of powers and checks and balances.  

Finally, we were to understand whether dual federalism defines the US federal structure. Taking into account the long period of dual federalism in action, we could say yes, but analysing today’s situation we saw that the US federal structure is more likely to be cooperative, as the president interferes in states’ government.  
 

                                Bibliography

Books:

1. Benjamin Ginsberg, American Government: Power and Purpose – Brief 10^th ed. (USA, W.W.Norton & Company, Inc., 2008)
2. David B. Magleby, Government by the people (USA, New Jersey, 2008)
3. George T. Kurian, A Historical Guide to the US Government (New York: Oxford University Press, 1998)
4. Joseph F. Zimmerman, Contemporary American Federalism (State University of New York Press, Albany, 2008)
5. Peter Woll, American Government readings and cases (Toronto, 1987)
6. Robert A. Heineman, American Government (USA, McGraw-Hill, Inc., 1995)
7. ?

 

Internet resources:

1. http://www.rockinst.org/pdf/federalism/2010-05-07-federalism_during_obama_administration.pdf

2. http://alcalc.oxfordjournals.org/content/41/2/193.full

3. http://lawprofessors.typepad.com/conlaw/2009/01/obama-and-feder.html
4. http://americanhistory.about.com/od/usconstitution/a/checks_balances.htm
5. http://www.as.ysu.edu/~polisci/sracic_pap/states%20rights%20and%20federalism%20%28from%20The%20Constitution%20and%20its%20Ammendments,%20Macmillan,%201999%29.pdf
6. http://www.google.am/images?hl=hy&biw=1680&bih=798&tbs=isch%3A1&sa=1&q=checks+and+balances&btnG=%D5%88%D6%80%D5%B8%D5%B6%D5%A5%D5%AC
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8. http://wps.prenhall.com/hss_berman_democracy_4/7/1857/475505.cw/index.html
9. http://www.america.gov/st/usg-english/2007/January/20071128094357abretnuH0.8318903.html
10. http://quimbee.com/quimbee/case_detail/Bush%20%20v.%20%20%20Gore/707051
11. http://www.cals.ncsu.edu/agexed/aee501/1890law.html
12. http://americanhistory.about.com/od/civilwarmenu/a/cause_civil_war.htm
13. http://www.lawnix.com/cases/mcculloch-maryland.html
14. http://politicalscience.studentreader.com/dual-federalism-cooperative-federalism
15. http://books.google.com/books?id=x3kViV5h-O0C&pg=PA52&dq=commandeering+printz&ei=tmc8Sra9O4GEzQSQ0PCFDw#v=onepage&q=commandeering%20printz&f=false 
16. http://www.core-online.org/History/voting_rights.htm
17. http://www.socialstudieshelp.com/Lesson_13_Notes.htm
18. http://www.fas.org/sgp/crs/misc/RL30315.pdf