17.2.2 Separation of powers and checks and balances.

Separation of Powers

Definition:

Constitutional Basis:

• Article 1: States the powers of Congress, detailing its legislative authority.
• Article 2: Establishes the powers of the executive branch, headed by the President.
• Article 3: Establishes the US Supreme Court, giving it the power to check the other branches by ruling on the constitutionality of their actions.

Purpose:

Executive Checks

Checks on Congress:

• The President can suggest legislation, using the platform of their election to advocate for policies, as seen in the State of the Union address. For instance, in 2018, Trump requested Congress for funding for border security, aligning with his campaign promise to build a wall.
• The President has the power to sign or veto legislation. A veto can prevent a bill from becoming law unless overridden by Congress. For example, Obama used the veto power 12 times, with only one veto being overruled.
• As Commander in Chief, the President directs the military, deciding on troop deployments and the use of force.
• The President can negotiate executive agreements with foreign powers, bypassing the need for Senate ratification, as demonstrated by Obama's nuclear deal with Iran.

Checks on the Judiciary:

• The President holds the power of pardon, allowing them to excuse individuals for federal crimes or commute sentences.
• The President nominates judges to the federal judiciary, including the Supreme Court, subject to Senate confirmation. An example is Biden's nomination of Ketanji Brown Jackson to the Supreme Court.

Legislative Checks

Checks on the Executive:

• Congress can override a presidential veto with a two-thirds majority in both houses. This occurred with Obama's veto of the Justice Against Sponsors of Terrorism Act being overridden.
• Congress can ignore or reject presidential legislative influence, particularly in times of divided government. For instance, Trump faced opposition in his efforts to build a border wall, even from within his own party. Similarly, Biden's legislative efforts were blocked after losing the House in the 2022 midterms.
• The Senate must ratify treaties negotiated by the President with a two-thirds majority, as seen when the Senate did not ratify Obama's Convention on the Rights of Persons with Disabilities.
• The Senate confirms judicial appointments made by the President, though this check is most effective during divided government. Obama's nomination of Merrick Garland was blocked by the Senate.
• Only Congress has the power to declare war, with the last formal declaration occurring in World War II.
• Congress controls federal spending through the "power of the purse," deciding how funds are allocated. This was evident when Congress refused to fund Trump's border wall.
• Congress can impeach the President for high crimes and misdemeanors, with the House initiating the process and the Senate conducting the trial. Trump was impeached twice, although he was not convicted by the Senate.

Checks on the Judiciary:

• Congress can challenge the legitimacy and power of the Supreme Court by questioning its right to exercise judicial review. For example, Biden's $430 billion student debt forgiveness plan was challenged in court.
• Congress can pass legislation to limit the impact of Supreme Court decisions or amend the Constitution, though amendments require a two-thirds majority in both houses and ratification by three-fourths of state legislatures.

Judicial Checks

Judicial Review: The Supreme Court can declare actions by the President or laws passed by Congress unconstitutional, effectively nullifying them. This power ensures that both the executive and legislative branches operate within the bounds of the Constitution.

Bipartisanship

Divided Government

• Impact: Divided government can lead to more effective scrutiny of bills and treaties, as each party critically evaluates the other's proposals. However, it can also result in legislative gridlock, where little progress is made due to partisan disagreements. For instance, during the 116th Congress, only 344 laws were passed, making it one of the least productive periods. Despite this, bipartisanship was still evident in the passage of coronavirus aid.
• Increased Polarization: Divided governments have become increasingly polarized, making bipartisan cooperation more challenging. The refusal to hold hearings for Obama's Supreme Court nominee, Merrick Garland, during his last term, contrasted with the swift confirmation of Trump's nominees, exemplifies this trend.

Gridlock

• Challenges: Gridlock can make bipartisanship difficult to achieve, particularly given the widening ideological divide between the two major parties. Despite this, there have been periods of significant bipartisan cooperation, such as during the 98th Congress, which passed major legislation despite divided government.
• Recent Trends: The increasing polarization has resulted in legislative stalemate, with each new Congress often setting records for a lack of accomplishment. The refusal to consider Obama's Supreme Court nominee and the frequent rejections of Trump's and Obama's budgets highlight the deepening partisan divide.
• 2020 Election Fallout: The 2020 election further exacerbated divisions, with Trump's refusal to accept the results leading to the January 6th insurrection, an unprecedented attempt to halt the constitutionally mandated certification of the election results.