#13: CIVICS 101: The Constitution
Q&A #13: What is meant by the separation of powers and "checks and balances" in the Federal Government?
Our American Government
Our American Government is a small book published by the House of Representatives for citizens and those who seek a greater understanding of the American interpretation of democracy. It follows a question-and-answer format and covers a broad range of topics dealing with the three branches of our Government, the electoral process, and the role of political parties.
The Savvy Citizen is reproducing the 169 questions-and-answers through a series of posts called Civics 101. Each post will contain the Q&A as well as some additional commentary to add historical context, fun facts, or anything we believe will add to our collective understanding of these topics.
Think of it as your adult Civics class, but without the test!
Let’s keep at it.
SECTION: The Constitution
Q&A #13: What is meant by the separation of powers and "checks and balances" in the Federal Government?
The separation of powers and checks and balances are two fundamental principles underlying the Consitution. They work together to prevent a tyrannous concentration of power in any one branch, to check and restrain Government, and ultimately, to protect the rights and liberties of citizens.
The Constitution contains provisions in separate articles for the three branches of Government—legislative, executive, and judicial. There is a significant difference in the grants of authority to these branches, each of which is also given an independent base of political power.
The First Article, dealing with legislative power, vests in Congress “All legislative Powers herein granted”;
the Second Article vests “The executive Power” in the President; and
the Third Article states that “The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
In addition to this separation and independence among the three branches, the Constitution sets up “auxiliary precautions," as James Madison called them in the Federalist Papers, that allow each branch to check and balance the others.
For instance, the President can veto bills approved by Congress and nominate individuals to the Federal judiciary; the Supreme Court can declare a law enacted by Congress or an action by the President unconstitutional; and Congress can impeach and remove the President and Federal court justices and judges.
My Thoughts
It never ceases to amaze me how clever the concept of three co-equal branches of government is. I’ve recently learned that the majority of American adults can’t name them, or any of the rights listed in the First Amendment for that matter.
When the checks and balances get out of whack, we have an over-concentration of power in one branch that needs to be corrected. This has been the dance of American government since our founding, but it’s been uniquely challenging since President Woodrow Wilson ushered in the Progressive Era and claimed that modern government should be administered by experts, instead of elected officials, followed by FDR’s New Deal legislation, President Johnson’s Great Society, and the massive enlargement of the government via the Civil Rights Act of 1964.
When you hear someone talk about the “bloated government,” they’re probably referring to the myriad federal agencies in and outside of the Executive Branch as many act quasi-independent decision-makers.
There are four general types of federal agencies:
cabinet departments,
independent executive agencies,
regulatory agencies, and
government corporations.
The cabinet departments are the departments that make up the President’s cabinet. Currently, there are 15 executive departments (agencies), each headed by a Cabinet secretary. The Vice President is also a member of the President’s cabinet. The President’s Cabinet advises the President upon his request—each Cabinet member serves at the “pleasure of the President” and can be removed without cause. The Cabinet derives its authority from Article II, Section 2 of the Constitution.
Independent agencies are “technically” part of the executive branch of government, but they aren’t a part of the President’s Cabinet, or under the President’s authority. They have their own rulemaking authority and are generally insulated from presidential control. Per Supreme Court precedent, the President’s power to dismiss an agency head is limited to removal for cause, making them REALLY hard to fire.
Rulemaking is the process federal agencies use to create, amend, or repeal rules, aka federal regulations, that have the same force as laws passed by Congress. Independent and regulatory agencies (also independent but structured differently) derive their authority from Congress through a series of statutes, no the Constitution.
These independent agencies are routinely referred to by critics as the Fourth Branch of government, the Administrative State, the unaccountable bureaucrats functioning as legislators, the Deep State, and the “swamp.”
SIDEBAR » The role and power of independent agencies is a HUGE issue in this election and is why Kamala Harris campaigns on the premise that Donald Trump wants to concentrate more control in the Executive Branch so he can have more power. This is why she keeps trying to associate him with Project 2025, which takes direct aim at the Administrative State on the basis it’s functioning as an unconstitutional fourth branch of government.
Trump, on the other hand, campaigns on the need to “kill the Deep State” by bringing these independent agencies under Presidential control and dramatically reducing their size. It’s not really a “consolidation of power,” but a reset to ensure no branch of government is functioning without constitutional authority. Make no mistake, it’s a MASSIVE power struggle.
Most law is now created via federal regulation, instead of statutes, which makes the law insanely complicated, burdensome, and difficult for citizens to understand. No one voted for any of these agency heads. While there’s a public commenting process for rulemaking, only lawyers, lobbyists, and extremely active citizens have any idea how to engage it. There’s an entire branch of law called Administrative Law dealing with these agencies.
Justice Neil Gorsuch recently published an excellent book called Over Ruled: The Human Toll of Too Much Law.
Finally, government corporations are a type of federal agency created by Congress to provide a public-facing service on behalf of the government and to generate revenue that minimally covers its costs. Examples include NASA, the US Postal Service, and Amtrak. There are currently 17 government corporations.
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Back tomorrow with a New Section: The Legislative Branch and Q&A #14: What is Congress?
Have a great weekend!
Meanwhile, don’t forget that we’re organizing the post links on a single page available here.
xo,
Kelley for the Savvy Citizen Team
October 23, 2024