One of the fundamental concepts that students learn in a civics class is that our constitutional system is based on the principle of checks and balances. The Founding Fathers were wary of excessive power in the hands of one of the three branches of government and so they devised the idea of separation of powers — three co-equal centers of decision-making responsibility with each center having the ability to check the other two centers and thereby balance the power of governing. The language of the Constitution is filled with examples of the checks and balances system of government as the power of the President is limited by the Congress (approves spending), the Congress is limited by the power of the President (veto over proposed legislation) and the federal courts are responsible for seeing that the two other branches do not make and support laws that are unconstitutional (often termed judicial review).
The checks and balances system does not make for quick or complete public policy but is rather a means of slowing the process of governmental decision-making so that the result is based on compromise, consensus and bipartisan cooperation. The President is supposed to work with Congress to fashion legislation that is agreeable to both political parties and represents the best effort to achieve unity, while the Congress is expected to ensure that the executive branch is fully informed and supportive of the legislation and has opportunities to provide input on the final legislative proposal. Finally, the federal courts, if there are questions and concerns about the legislation, can view the law as within the boundaries of the Constitution.
The checks and balances system is currently undergoing a major test of its ability to resolve policy issues and controversies as a divided and often angry Congressional majority and an aggressive and threatening President clash with those in opposition to the legislative and regulatory agenda. The result is that issues of major importance are often transferred to the federal courts to seek a constitutionally appropriate answer to the dispute. Checks and balances have now been replaced by a litany of litigation and legal charges and countercharges as the only ways to place limits on governing power as intended by the Founding Fathers.
It is fair to say that the traditional governing system is out of sync as the federal courts were never intended to be bombarded with legal suits and challenges and required to make quick judgments on key policy issues. What is even more distressing is that the Supreme Court is divided along ideological lines, so that when a decision is rendered the result is a continuation of the toxic divide and a failure to attain a balance that is accepted by the political combatants. There is no final resolution of the specific policy dispute, but often a temporary pause in the checks and balances process.
So what was supposed to be a reasonable process of sharing power and cooperation on the road to compromise has become a failed system of political infighting. Democrats, for example, used the rare, complex and long shot impeachment of President Trump as a check on his ability to remain in power (he was not convicted by the Senate), while the Republicans supported the presidential use of over 100 executive orders and recommendations, many of which were not serious attempts to bring about change (The Gulf of America). And don’t forget Senator Cory Booker’s 24-hour-plus quasi-filibuster in which he laid out with minimal impact the Democrat case against Trump (Talking is not lawmaking). Finally, there are the endless “Oversight” hearings of the Republicans in the House that usually consist of embarrassing shouting matches not intended to arrive at policy clarification or the truth (the failed efforts to link Biden to corruption). These are just some of the extreme measures that have only heightened the divide that now describes American politics.
There is much talk about how the United States is heading toward authoritarianism with President Trump functioning as a dictator and the Republican majority in Congress as willing accomplices. One way to break this cycle of authoritarianism and reestablish democratic practice in our country is to ensure that the checks and balances system is revitalized and in working order. Real change, lasting change, effective change comes when there is a vital interaction between the executive and legislative branches and the federal judiciary is not called upon to manage a constant flow of partisan disputes. The Founding Fathers had it right when they developed a checks and balances system of policy making. It is time to return to a constitutional process based on a bipartisan check on power and a commitment to political balance in the way laws are made. There still may be time to return to those days of compromise, consensus and cooperation but at present the odds of success are not encouraging.