govt 2301 federalist #51 and the separation of powers
TRANSCRIPT
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GOVT 2301
Federalist #51 and the Separation of Powers
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Last week we looked at republicanism, the first of several principles
embedded in the U.S. Constitution.
As we know, republicanism is the fancy name for representative
democracy, and that the principle is meant to ensure the stability of the
governing system despite its basis on the people.
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In this set of slides we look at a second principle within the Constitution, the separated
powers.
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The term refers to the separation of the three functions of
government into three separate institutions: the legislative,
executive and judicial.
We’ve hit this point several times so it should be familiar to you by
now.
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We will also look at the checks and balances, which is the method
maintains the separated powers.
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Remember that concentrated power leads to tyranny. If we can
keep governmental powers separated, we are free from
tyranny. But as a consequence we have to endure inefficiency in
governing.
You can’t have everything.
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Here’s Madison’s commentary from Federalist 47: “The
accumulation of all powers, legislative, executive, and judiciary,
in the same hands, whether of one, a few, or many, and whether
hereditary, self-appointed, or elective, may justly be pronounced
the very definition of tyranny.”
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We will read through Federalist #51, which explains the purpose behind the separation and the
logic of the checks and balances.
If you are ambitious, here is the text, here is the commentary on
Wikipedia, and here is a summary of Federalists 47 – 51.
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For past blog posts on these subjects, click on the following:
Separated Powers.Checks and Balances.
Appointments.Federalist 51.
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A little history (a reminder) might help remind us about the
importance of balanced governments.
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This section is about the need for balanced governments
As we’ve seen from previous lectures, over the course of Anglo-American history, a
degree of balance has emerged between governing institutions. That was the
consequence of the rise of the legislature and its ability to limit the arbitrary actions
of the monarch.
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Balanced governments existed in ancient Rome as well as Britain.
The links take you to the constitutions of each government.
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The Roman Republic contained powers clearly divided into
different institutions.
Recall that the Roman empire began when the power of the
Senate was forcibly reduced by Augustus Caeser.
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The British government is divided as well, but with a difference.
The British Constitution divides power is among the different
classes in society. Each is connected to a separate
institution.
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Monarchy – The Royal FamilyAristocracy – The House of Lords
Commoners – The House of Commons
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Enter the Enlightenment
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Baron De Montesquieu was a proponent of a governing system
separated according to the functions of government.
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His writings were as influential as any other author in colonial
America.
Read here for background on separated powers from
findlaw.com. (and of course Wikipedia)
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The following quote is from one of his more influential books:
“The administrative powers were the executive, the legislative, and the judicial. These should be separate from and dependent upon each other so that the influence of any one power would not be able to exceed that of the other two,
either singly or in combination.” – The Spirit of the Laws.
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As a result: In the American system a balanced government means
that the three functions of government are vested in three
separate institutions, and the balance is maintained by giving
each the power to resist the encroachment of the other two.
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The Trick:
How do you do this?
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How are powers separated and how are they kept separate?
That is the subject of Federalist #51, written again by James Madison. This subject is also
discussed in Federalist Papers 47 – 50.
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I’d recommend that you take a moment to read through the
document. As with Federalist #10, it can be a bit tough, but give it
time and attention and the argument should make sense.
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According to Madison the first thing is to ensure first that each
institution “has a will of its own.”
This means they are autonomous, or independent. One should not be
able to control the others.
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This explains why each institution is described and outlined in clearly distinct articles in the Constitution.
Let’s take a moment to review them. You might want to open
each article in the U.S. and Texas Constitutions and give them a
quick read.
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Each article begins with a vesting clause which states that each power is “vested” in a distinct
institution.
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What does a vesting clause do?
“Vested clause is a clause that grants authority. This clause is included under the constitution to authorize the main branches of a government such as the
legislative, executive, and the judiciary, to Congress, the President,
and the Supreme Court respectively.”
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But notice that there is no clear definition of what each of these powers entails. This is a critical omission. One of the things the Supreme Court has to reconcile from time
to time is the precise definition of each power, as well as whether each institution is limited to that one power, or whether other language in the Constitution allows
each institution to have a sliver of the powers of the other two.
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Let’s walk through the articles. I added photographs of the
buildings associated with each institution to demonstrate that the
document did indeed allow for a more powerful government than
existed under the Articles of Confederation.
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The Legislature
Article One of the U.S. Constitution
Article Three of the Texas Constitution
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Section 1.
“All legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and
House of Representatives.”
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Basic Facts:
- It is the democratic branch, it is closely tied into the electorate.- It has the power of the purse.- It makes laws- It represents constituents- It oversees the implementation of laws- It checks the executive and judicial branches
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The Executive
Article Two of the U.S. Constitution
Article Four of the Texas Constitution
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Section 1.
“The executive Power shall be vested in a President of the United
States of America.”
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Notice that the terminology does not contain the phrase “herein granted.” This matters. Some
argue that this means that executive powers are intended to
be open ended.
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Basic Facts:
- It is the autocratic branch, on the national level it is headed by a single person (to provide “energy” in the executive), plural on the state level. - It has an elected component, and a professional component: The bureaucracy.- It has the power of the sword- It implements the laws- checks the legislative and judicial powers.- the most feared branch – military king?
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The Judiciary
Article Three of the U.S. Constitution
Article Five of the Texas Constitution
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Section 1.
“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.”
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Basic Facts:
- The oligarchic branch- reconciles disputes in society- the disputes can be criminal and civil- trials and appeals- interprets statutory and constitutional law- checks the executive and legislative branches with judicial review
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The United States Constitution does not clearly state that it is a system of separated powers. It
simply establishes that it is such a system.
The Texas Constitution does.
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THE TEXAS CONSTITUTIONARTICLE 2. THE POWERS OF GOVERNMENT
Sec. 1. DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS; EXERCISE OF POWER PROPERLY ATTACHED TO OTHER
DEPARTMENTS. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of
which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person,
or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.
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Notice that the language in the Texas Constitution states that each
institution is to be completely distinct. This is a source of
controversy. Are they in fact meant to be fully distinct, or are
they to overlap?
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Do we have a system of rigidly separated powers, or a system containing separate institutions
sharing powers?
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Regardless, we now turn to the question: How does the
constitutional system establish and preserve the separation? That’s what Federalist #51 attempts to
explain.
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Just because this separation is written out in the Constitution
does not mean that these institutions will stay separated.
They first have to be designed so that they are truly distinct.
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This is done by ensuring that none of these institutions can control the appointments of the others.
This means that each must have its own unique way of getting elected.
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That’s what Madison is trying to argue in Federalist 51.
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The first step is that each institution “should be so
constituted that the members of each should have as little agency as possible in the appointment of the
members of the others.”
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Which means that “. . . all the appointments for the supreme
executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the
people, through channels having no communication whatever with
one another.”
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The people in each institution have to be selected in distinct ways.
Since there are four institutions established in the Constitution,
that means there are four ways of placing people in each position.
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House – Election by the PeopleSenate – Selection by State
LegislaturesPresident – Electoral CollegeFederal Courts – Presidential
Appointment followed by Senatorial Confirmation.
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As a consequence, each institution is responsible to a different
constituency. If they were all responsible to a single
constituency that entity could be the force that drives these powers
together, which can lead to tyranny.
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Tyranny occurs when on controls the others; when they are no
longer independent.
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Note that the judiciary is different since it’s members are appointed to office. Madison
explains that this is to ensure that its members are qualified for the office. I
suppose we are to then assume that no qualifications are necessary for those
positions – or at least that the electorate is in a position to judge those qualifications,
but not those of judges.
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“Some deviations . . . from the principle must be admitted. In the constitution of the judiciary
department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar
qualifications being essential in the members, the primary consideration ought to be to select that mode
of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon
destroy all sense of dependence on the authority conferring them.”
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By the way, this was the type of reasoning that upset the Anti-
Federalists and made them think that the Constitution was
established as a mechanism for limiting their impact on
government. They were not irrational to think so as we know.
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Also note: The 17th Amendment altered this relationship by making Senators
subject to the direct preferences of the people of the states, as are House
Representatives. The states no longer had a direct connection with the national
government.
One question that we could ask is whether this reduced the independence that the
Senate had from the House.
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And again, note that in Texas all of these positions are elected by the
people. We will reflect on this later, but consider for now
whether this allows for the powers to become concentrated.
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As has been discussed before, Texas’ design reflects that greater
faith the drafters of the Texas Constitution had with the decisions
of the electorate. It embodies an expansion of democracy that
occurred as the country moved westward.
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That’s the positive spin. The negative spin is that it allowed the majority to continue tyrannizing
the minority.
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In addition to the different means for getting elected, each institution also has different terms of office.
This strengthens the separation.
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House – 2 year termSenate – 6 year overlapping terms
President – 4 year termsFederal Courts – service during
good behavior. Generally referred to as lifetime tenure.
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Notice that the judiciary has lifetime tenure. This is to ensure
that the judges will not be controlled by the executive branch.
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As a consequence of this design, at no point can the electorate, or any
other entity, remove the entire government at once. It is immune
from the direct influence of the electorate, or of the state
legislatures.
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The pressures that directly impact House Representatives cannot
have the same impact on Senators or the President. And they can
never have a direct impact on the Judiciary, at least on the national
level.
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This enhances independence.
If properly designed, the result will be four institutions that can act
independently.
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The purpose is to ensure that drastic shifts in public opinion will
not lead to drastic changes in public policy.
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But steady changes in one direction election after election
can have an impact on public policy. Attitudes about race and
gender are good examples.
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Again, Texas is a bit different. Terms lengths vary, but are shorter
than national terms of office and thus the occupants of the office
are more controllable by the electorate.
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House – 2 year termSenate – 4 year overlapping terms
Governor – 4 year termCourts – 6 year term
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A third factor establishing the independence of each institution is
that neither has full control over the salaries of the other two.
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“It is equally evident, that the members of each department should be as little dependent as possible on
those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the
judges, not independent of the legislature in this particular, their
independence in every other would be merely nominal.”
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But just because the institutions are designed to be independent does not means that each would be immune from attempts by the
others to take them over.
Madison assumes that these attempts would be inevitable. This
was the point of Fed 51.
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“TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of
power among the several departments, as laid down in the
Constitution?”
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How do we keep them separated?
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“The only answer that can be given is, that as all these exterior provisions are
found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts
may, by their mutual relations, be the means of keeping each other in their
proper places.”
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An external power cannot be expected to solve the problem
since that institution would then have the opportunity to become
tyrannical. The answer lies in how powers are arranged in the
institution.
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Some states had Councils of Revisions that would over see the laws passed by the
legislature to see if they were in keeping with their Constitutions. A similar council
was proposed but defeated in the convention partly due to suspicions that
this institution would become tyrannical.
The better option was to solve this problem internally.
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“. . . the great security against a gradual concentration of the several
powers in the same department, consists in giving to those who
administer each department the necessary constitutional means and
personal motives to resist encroachments of the others.”
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“The interest of the man must be connected with the constitutional
rights of the place.”
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What this means is that each institution is set against the other two.
This is the logic underlying the checks and balances. The ambitions of the people in each institution would be
the driving force checking the ambitions of the people in the other
institutions.
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An ambitious leader in one institution will not necessarily be
satisfied with controlling only that institution. What, for example, is
to prevent the president from taking over the legislative and
judicial branches?
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“Ambition must be made to counteract ambition.”
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He is taking – as in Federalist #10 – a realistic look at human nature.
Leaders are by definition ambitious.
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“It may be a reflection on human nature, that such devices should be necessary to control the abuses of
government. But what is government itself, but the greatest of all reflections
on human nature?”
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“If men were angels, no government would be necessary. If angels were to
govern men, neither external nor internal controls on government would be
necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must
first enable the government to control the governed; and in the next place oblige it to
control itself.”
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“A dependence on the people is, no doubt, the primary control on the government; but experience
has taught mankind the necessity of auxiliary precautions.”
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Notice again, as in Fed 10, he notes a negative but inevitable aspect of
human behavior and uses it to solve itself.
The ambitious president is thwarted by the ambitious legislator and vice versa.
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The point is that many of the powers that are written in the
Constitution are focused on establishing and maintaining
balance.
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A few examples to make the point:
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Yearly sessions of Congress mandated by Constitution and they adjourn themselves. The
president cannot prevent Congress from meeting – and potentially
controlling him – or adjourn Congress.
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National Judges and Justices serve during good behavior, which frees
them from control by the executive.
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The Legislature cannot increase or decrease a president’s pay. They
cannot use pay as a toll of bribery or punishment.
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Judges and Justices can have their pay increased (they serve for life)
but it cannot be decreased.
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Those who hold an office in one institution cannot hold one in
another.
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Altogether these design features are meant to ensure that the three
institutions are autonomous.
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The Anti-Federalists did not believe that these limits would be sufficient to check national
powers.
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Anti – Federalist #51
Do Checks and Balances Really Secure the Rights of the People?
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Let’s turn to an overview of the checks and balances on the
national level.
A list from wikipedia.
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Note that some of these powers are established in the Constitution, but others some have evolved over
time.
Judicial review and oversight authority are two powers that
were obtained over time by the judicial and legislative branches.
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Legislative Checks on the Executive
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Impeachment (House)
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Trial of Impeachment (Senate)
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Over-Riding Vetoes
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Tax Bills must begin in the House
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Control over Appropriations
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Approval of Treaties (Senate)
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Approval of judicial and executive appointees (Senate)
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Oversight Authority
While not mentioned in the Constitution, it has always been understood that Congress can
investigate actions of the other branches.
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Also note that the House and Senate can check each other
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Executive Checks on the Legislature
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The State of the Union Address
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Vice President is President of Senate
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Calling of Emergency Sessions of Congress
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Authority to force adjournment of Congress when both houses cannot agree when to do it
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Recess Appointments
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The Veto
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Rulemaking
When Congress passes legislation establishing executive agencies, these agencies can pass rules,
which carry the weight of legislation. Though are questions whether Congress can delegate
legislative authority.
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Legislative Checks on the Judiciary
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Designing the courts, which includes creating inferior courts
and determining how many justices serve on the Supreme
Court.
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Determining the jurisdiction of federal courts, what they can and
cannot rule on.
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Approval of Federal Judges
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Impeachment of Federal Judges
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Rewriting statutory law to negate Supreme Court decisions.
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Initiation of Constitutional Amendments to negate Supreme
Court decisions.
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Judicial Checks on the Legislature
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Judicial Review of Statutes
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Chief Justice Presides over Impeachment trials
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Executive Checks on the Judiciary
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Appointment of Judges
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Power to issue pardons, reprieves and amnesties
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Judicial Checks on the Executive
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Judicial Review of Executive Actions
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Chief Justice Presides over Impeachment trials
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Problem:
Are the powers too separated?
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While there is a tremendous advantage in ensuring that the
three powers of government do not fall into the hands of one
person or institution, separated powers can lead to gridlock and
inaction.
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The framers of the constitution still wanted a government that
worked.
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Proponents of political parties argue that parties are essential in
overcoming the gridlock that would paralyze government if the institutions always worked against
each other.
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Parties, by running candidates for office committed to a set of
policies, or at least a shared idea of governance, a party can potentially
control the branches and successfully implement an agenda.
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Again, this is only likely to happen if one party can win a series of
elections.
Alternate victories are likely to lead to one party cancelling out
what the other does.
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Proponents of parties argue that the ability of one party to offer an agenda and implement it allows
the electorate the ability to make a rational, meaningful choice in an
election.
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Parties, they argue, are therefore essential to the development of
democracy.
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They allow voters to make a clear choice between distinct
alternatives.
We will look at this more closely later.