Finding the Cracks of Modernity in the System of Checks and Balances

I. Introduction

The United States Constitution is renowned for being the first modern democratic

supreme law and also for being the most durable Constitution still in use in a states Government.

This explains why the work of the Founding Fathers has a sort of a sacred aura when it comes

to the credibility it has amongst the citizens that obey it and in the same note we can furthermore

explain the hardship in amending which is somehow understandable, in the sense that a

Constitution is meant to be hard to alter, in order to prevent tyrannical regimes and even

wanting to change, in various ways, this governing set of principles.

Written with the sole purpose to form more perfect Union, establish Justice, insure

domestic Tranquility, provide for the common defence, promote the general Welfare, and secure

the Blessings of Liberty to ourselves and our Posterity (U.S. Const. Preamble), the U.S.

supreme law does not mention anywhere in its text the words separation of power or checks

and balances. However, these principles represent the basis of the American political system,

defining in a way the idea of a federal, constitutional representative democracy that is the United

States.

Keeping in mind that the US Constitution was created more than two hundred years ago,

in a very particular historical background, I believe that not all the instruments it provides for the

three branches of power to control and check one another are still up-to-date, but on the contrary,

in the Congressional/Presidential relation many of them have changed and developed

unconstitutionally or not into unwritten, inherent powers that have the potential of

destabilizing the current fragile balance of the countrys Government.

 The following essay will focus on understanding in what way the system of checks and

balances is still defining the methods and procedures used in governing contemporary America,

how it has been modified throughout the growth of this country, which are the reasons of those

new developments and how these changes can affect the outcome of ruling and lawmaking in the

United States.

II. The Initial Division of Power in the Congressional/Presidential Relation. The

Reasoning behind It and Its Efficiency in the Present Political System of the U.S.

The Constitution of the United States was born in 1787 after only eleven years had

passed since the country gained its independence from Great Britain. This particular historical

fact as well as the historical background as a whole is very important in understanding why

the Framers insisted upon the separation of power and especially how did they imagine a more

perfect Union (U.S. Const. Preamble) by installing checks and balances.

As already stated, the supreme law does not offer explicit information on this particular

matter, so we find ourselves turning our attention to the text of Federalist No. 51. From the

beginning we are met with the answer for maintaining in practice the necessary partition of

power among the several departments (Hamilton or Madison, 2001, p. 231) which would be

according to the author of Federalist No. 51 the means of keeping each other in their

proper place (ibid., p. 231), i.e. the system of checks and balances.

While the separation and independence of each branch of power is insisted upon in order

to preserve liberty, Federalist No. 51 claims the need of both external and internal controls over

the government, as men are yet to become angels (Hamilton or Madison, 2001, p. 232). In this
case (i.e. of separation of power), the biggest problem for the Founding Fathers that is still a

rising issue even nowadays was to equally divide power, challenge that turned out to be

impossible to solve. As seen in the Constitution, the Legislative branch is the most powerful one

it also has the most checks on the other two branches and its dominance comes from the fact

that the Framers were afraid of too strong an Executive that could resemble the dreaded

monarchical system.

The fear of a strong executive having its roots in the upheaval against the British

Crown can be easily observed in the structure of the Constitution. Having its first Article

reserved to the Legislative, the power and checks over the President are clearly stated in order to

keep them closed to interpretation. Therefore, the House of Representatives shall have the sole

Power of Impeachment (US Const. Art. I, Sec. 2), the Senate shall have the sole Power to try

all Impeachments (US Const. Art. I, Sec. 3), Congress may override the Presidential veto, as it

is explained in the US Constitution, on Article I, Section 7 and many other checks over the

executive have also been stated in Article I, Section 8, such as power to declare War, provide

and maintain a Navy or provide for organizing, arming, and disciplining the Militia, even though

The President shall be Commander in Chief of the Army and Navy of the United States, and of

the Militia (US Const. Art. II, Sec. 2) But what is there left to command?! And the list of

checks on the Presidency is yet to be concluded.

Fortunately, present day Executive does not look as weak as it had been portrayed

initially in the Constitution, for it has found ways of using its status in order to provide itself with

inherent powers. And while Presidency powers enhance, it comes naturally for the Legislative to

lose some.
 Even at a first glance, the initial system of checks and balances, as constructed by the

Framers, seems to lack the elasticity needed in the continual change in present society.

Economic, social, cultural and technological developments have been putting pressure on the

political system, in the sense of keeping up with modernity. For example, pressing issues, made

public fast and easily by media coverage cannot wait for Congress (dis)approval, and therefore,

the Presidency finds executive orders a handy and effective response to relieve the public

pressure with a resolution. And this is only one example of going around the Constitution, but in

my opinion, these practices come naturally, as a reaction to an inexhaustive, somewhat obsolete

supreme law.

III.The Rise of the Executive Power. Has Inefficiency of the Initial System of Checks and

Balances Led to Abuse of Power or Is It a Normal Reaction to Present Day Necessities?

The Framers, however against a single executive represented by only one person, also

believed the new government needed energy in the executive. They were willing to increase the

risk of tyranny in return for some efficiency (Magleby & Light, 2009, p. 271). Other than this,

they were still very cautious, as they preferred to propose a bicameral Congress in order to

counterbalance the strength of the legislative power rather than giving the Presidency too

much power. This implies that the Legislative has a self-checking status, which was unique at

the time the Constitution appeared among the three branches.

Only in the second part of the 20th century the self-check of the executive branch appeared

as well. This happened as a result of the ratification of the XXV TH Amendment in 1967 and it

consists in the possibility of the Vice President or the members of the executive departments to
transmit a declaration to Congress in which they can argue that the President is unable to

discharge the powers and duties of his office (US Const. Amend. XXV, Sec. 4). Therefore, the

need of a self-checking status, similar to the one applied to Congress show that the executive

power has increased significantly since the birth of the country.

A striking issue that has political implications even nowadays was the one of

dividing the authority over the Army. The Framers decided to give Congress the power to

declare War (U.S. Const. Art. I, Sec. 8) even though the President was still the Commander in

Chief. The problem with this decision is that however justified it was at the beginning it

does not identify itself with the current situation in the United States. Nowadays, there is no

longer use for a fear of a monarchical tyranny and even if there were the risk of a totalitarian

regime, the impeachment power or trial of impeachment shared by both legislative Houses

should be enough in checking the Presidency. Furthermore, contemporary affairs cannot wait for

a congressional decision, as they could back in the day, because best decisions need to be taken

as fast as possible. Therefore, when there is a matter of urgency, the Presidency should be

entitled to have the right of declaring war, without waiting for the Congress response.

Lately, this is exactly how the executive has been behaving and while Congress may call

it an abuse of power on the part of the executive regarding the recent wars America has gotten

involved in, I believe the problem is the fact that this check that was given to the legislative is

out-dated and it should be modified in favour of the executive.

Although Congress has the sole authority to declare war, presidents have used their

power as commander in chief to order U.S. troops into battle without formal declarations dozens

of times over the past century, including the recent wars in Afghanistan and Iraq. Presidents have
often interpreted the war power even more broadly, as the Bush administration did in authorizing

the domestic eavesdropping program. (Magleby & Light, 2009, p. 274)

According to Magleby & Light, presidents of the United States have ordered troops into

battle in seven different states, all happening over the last half-century (Magleby & Light,

2009, p. 277) and while the executive finds it fit for its own authority, Congress did not agree

and in 1973, Congress enacted the War Powers Resolution (ibid., p. 274). But even the

Supreme Court has proscribed legislative attempts to extend congressional power into what

could be called the core functions of the executive branch (Garvey, 2012, p. 18) and however

resolved this foreign affairs problem may look, it is quite the opposite, as the executive can still

borrow the legislative power of declaring war.

In this particular case excluding extreme and subjective reasons of the Presidency that

can be resolved by a possible impeachment the power to wage war should stand into the

executive hands, as Congress may become an impediment in the efficiency needed on some

urgent matters. As current society depends on a very efficient and responsive government, delays

such as ruling over war implication or not can become a dangerous obstacle in providing the

security needed. Therefore, the current tendency of the executive to gain more authority seems to

be a natural response to the contemporary issues that appear in a modern society society that

puts its hopes and expectations in the executive as well, adding more pressure onto the

Presidency to start acting and resolving issues as fast as possible showing that the initial

system of checks and balances needs to be somewhat revised.

The need of increasing presidential power has always been a problem, but only in the 20 th

century the issue started to be rather evident in the actions of the presidents. According to

Chemerinsky, The Nixon administrations efforts to increase presidential powers were

intensified during the Reagan and first Bush presidencies and have come to fruition under

President George W. Bush.(Chemerinsky, 2006) and while it is understandable that the

executive should not have the same few powers as it had initially, the gaps and vagueness that

occur in the Constitution made it possible for some presidents to use inherent powers to a higher

degree.

Only in the George W. Bush presidency, Chemerinsky observed many unconstitutional

presidential actions that hide under the umbrella of the inherent powers. For example, the

electronic eavesdropping scandal of 2005 shows that even though the Constitution dictates that

searches require a judicially approved warrant, this did not happen in this case. Furthermore,

President Bush openly admitted and vehemently defended this warrantless wiretapping

(Chemerinsky, 2006). Such actions and many others even more important such as illegal

detentions or torture used in the same Bush Presidency are hard to combat as the supreme law

does not offer very clear prescriptions.

But the presidential increasing power does not stop here, also involving the highly

disputed right to signing statements or to give executive orders nowhere to be found in the

Constitution or, overall, the presidential right to lawmaking. According to Abner Greene, we

must relax our attachment to the framers principle of divided power as the increasing

presidential policy-making power has been accepted by the U.S. population (Greene, 1994, p.

134-135). This particular argument weighs more than any other, because if the people of the

United States authorize the increasing power of the executive, then the social reality should be

strong enough to change the initial laws, especially if they do not correspond to the

contemporary needs.
 Therefore, the large number of situations in which the Presidency of the United States has

acted upon its inherent powers shows that the actual system of checks and balances does not

offer the ideal means in which the countrys Government should function. And while the

Supreme Court can give its opinion on whether a presidential action is constitutional or not, I

strongly believe that this stopped being the solution on this matter. However, hard might be to

change the Constitution, there is a need to amend it in order to clarify the exact powers of the

executive, but also for the other two branches.

On the matter of the presidential inherent powers, a possible Referendum might be a very

good solution as to understand if the people of the United States would agree or not to trust their

president and to make his inherent powers fully constitutional, i.e. to be officially part of the

Supreme Law or on the contrary, to take them away. Thus, there will be no obscurity as to who

made the decision, the problem of the inherent powers will be solved and moreover, this method

will still respect the idea of a democracy.

IV. Conclusion

Separation of powers has proven to be, not only in the United States, but also in other

democracies, an effective way of ruling and the system of checks and balances has been an

extraordinary measure of keeping the Government focused on its duties. The three branches need

to constantly supervise one another in order to have a properly functional mechanism that battles

against corruption and totalitarianism.

However, as society changes, the ways of governing need change as well and I believe

that there might be some current flaws in the system of checks and balances, in the sense of

being out dated on some matters. Therefore, some checks or powers need to be regulated and
clarified, so that there will be no room for interpretation that may result in abuse of power ,

but on the other hand, too much independence for each branch can lead to inefficiency and bad

communication.

Tempering with the current state of the US Government might be a very delicate mission,

but I believe that, without altering the balance installed by the Framers, some measures can be

updated to the contemporary needs of the society, especially if the opinion of that same society

will matter in a Referendum.

However, there is still some room left to debate how would these new rules change the

current system and if there will be any damage, would it still be reparable?
 V. Bibliography

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Terrorism, University of California, Davis School of Law: Vol. 40, No. 1, Available at:

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?

article=2354&context=faculty_scholarship. [22 January 2017].

2. Garvey, T 2012, Presidential Signing Statements: Constitutional and Institutional

Implications, Congressional Research Service, Available at:

https://fas.org/sgp/crs/natsec/RL33667.pdf. [03 January 2017].

3. Greene, AS 1994, Checks and Balances in an Era of Presidential Lawmaking, University

of Chicago Law Review: Vol. 61: Iss. 1, Article 3. Available at:

http://chicagounbound.uchicago.edu/uclrev/vol61/iss1/3. [02 January 2017].

4. Magleby, DB & Light, PC 2009, Government by the People, Pearson Education.

Available at: https://www.scribd.com/doc/38985053/Government-by-the-People-1. [05

January 2017].

5. Manis, J (ed) 2001, The Federalist Papers, Pennsylvania State University. Available at:

https://www.scribd.com/document/8325691/The-Federalist-Papers. [04 January 2017].

6. The Constitution of the United States, transcript text, Available at:

https://www.archives.gov/founding-docs/constitution-transcript. [04 January 2017].