Additional Checks and Balances

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 812

As noted at ß, there are four structural elements in the Constitution: judicial review, federalism, separation of powers, and checks and balances. Issues of judicial review, federalism, and core separation of powers concerns dealing with the legislative and executive branches were dealt with in Chapters 17, 18, and 19, respectively. This Chapter discusses the remaining checks and balances issues under the Constitution.

Checks and balances operate in part to improve the effectiveness and quality of governmental decisionmaking, as noted at ß 19.1 text following n.2, including the quote from James Madison on enabling "the government to control the governed." This can be done by providing the option of a broader perspective, such as the presidential power to veto legislation, which itself is subject to a 2/3 override by both Houses of Congress, or by requiring broadly-based consideration, such as the President can be impeached, but the House brings impeachment and trial is by the Senate. The second main function of checks and balances is to guard against abuse of power and tyranny, in Madison's terms "oblige it to control itself." For example, the President is Commander-in-Chief, but Congress controls the purse and can make rules for the armed forces.

Some checks and balances can be found in the express text of the Constitution, as when it divides federal power into three branches - legislative, executive, and judicial - and then further subdivides legislative power so that both the House and Senate must approve legislation under the Bicameralism Clause, discussed at ß Similar checks and balances are provided for in the process of amending the Constitution, discussed at ß; the process of election of the President, discussed at ß; the process of election to, and rules regarding running of, the two houses of Congress, discussed at ß; and the process of congressional impeachment, discussed at 20.1.3.

In addition, as Justice Story noted in his Commentaries on the Constitution of the United States, discussed at ß 19.1 n.5, the framers did not want one branch of government to perform core functions of any other branch, or intrude too greatly into the interworkings of another branch. In addition to the core separation of power examples, discussed at ßß 19.2-19.4, which reflect this principle and are summarized at ß 19.4.4, the Court has recognized immunities from judicial action for members of Congress and their staff members under the Speech or Debate Clause of Article I, ß 6, cl. 1; has protected the President and other federal executive officials from intrusive judicial review through executive immunities; has developed doctrines regarding judicial immunities; and has adopted sovereign immunity for the federal government. These issues are discussed at ß 20.1.4.

Turning to checks and balances even more clearly created by the Court, rather than expressed in constitutional text, the Court has checked state power by recognizing a set of immunities for the federal government from taxation or regulation by the states and the Court has recognized some immunities for states from the federal government. These issues, based on general reasoning from the dual theory of sovereignty, are discussed at ß 20.2.

Relationships among the states and the federal government are also checked and balanced by the preemption doctrine which provides, based on the text of the Supremacy Clause, Article VI, ß 2, that federal law is supreme in case of a conflict between state and federal law, discussed at ß 20.3.1. Page 813

National interests in free trade that the Court thinks Congress wants protected are insulated from state action by cases under the dormant commerce clause. These cases typically balance the impact of state action on interstate commerce with the state's interests and the availability of alternatives which do not discriminate against interstate commerce, discussed at ß 20.3.2. The Privileges and Immunities Clause of Article IV, ß 2 protects residents of states from certain kinds of discrimination by other states. The clause is connected to the balance between federal and state governments because it applies predominantly to discrimination that has an impact on activities sufficiently basic to the livelihood of the Nation or interstate harmony, discussed at ß 20.3.3. Issues regarding the existence of federal common law, which can preempt state law, are discussed at ß 20.3.4.

Another balance between federal and state authority concerns determining the limits, if any, on the power given states by the 21st Amendment over the distribution of intoxicating liquors within state borders versus the federal government's interest in free trade. This issue is discussed at ß 20.4.

Cutting across all of these areas are three main issues that have framed Court doctrine regarding general checks and balances analysis under the Constitution. The first issue is whether to give clauses relating to checks and balances predominantly a literal interpretation, as would a formalist, or whether to read the clauses in light of their check and balance purposes. The second issue is the extent to which such clauses should be given a functional understanding, as would a Holmesian or instrumentalist, or whether analytic considerations should predominate. As discussed at ß 4.2.1 nn.32-40 & 4.2.2 text following n.48, a functional approach has often meant, post-1937, replacement of a categorical approach involving elements to meet with a balancing test or factor weighing approach. The third consideration relates to the fact, discussed at ßß &, that more conservative judges tend to prefer states and the President in checks and balances cases, while more liberal judges tend to prefer the federal government and the legislature. The issues are discussed below in the context of providing details on various kinds of checks and balances.

ß 20 1. Separation of Powers Checks and Balances
ß 20 1.1 Having Some Constitutional Government Structure in Place and Operating
ß 20 1.1.1 Ensuring the Continuity of Government

Prior to September 11, 2001, little attention was paid to ensuring the continuity of government in times of war or terrorist attack, other than ensuring a line of Presidential succession if the President dies of natural causes or is assassinated, becomes incapacitated, resigns, or is removed through the impeachment process. Following 9-11, greater attention has been focused on the fact that ensuring there is an ongoing federal government means ensuring three ongoing branches - legislative, executive, and judicial - each "with a different nature and structure and each with different constitutional, statutory, and administrative rules governing that structure and the continuity of its operations. . . . [T]here can be no...

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