Separation of Powers and Checks and Balances

Although debates over slavery and representation in Congress occupied many at the convention, the chief concern was the challenge of increasing the authority of the national government while ensuring that it did not become too powerful. The framers resolved this problem through a separation of powers, dividing the national government into three separate branches and assigning different responsibilities to each one. They also created a system of checks and balances by giving each of three branches of government the power to restrict the actions of the others, thus requiring them to work together.

Figure 1. To prevent the national government, or any one group within it, from becoming too powerful, the Constitution divided the government into three branches with different powers. No branch could function without the cooperation of the others, and each branch could restrict the powers of the others.

Congress was given the power to make laws, but the executive branch, consisting of the president and the vice president, and the federal judiciary, notably the Supreme Court, were created to, respectively, enforce laws and try cases arising under federal law. Neither of these branches had existed under the Articles of Confederation. Thus, Congress can pass laws, but its power to do so can be checked by the president, who can veto potential legislation so that it cannot become a law. Later, in the 1803 case of Marbury v. Madison, the U.S. Supreme Court established its own authority to rule on the constitutionality of laws, a process called judicial review.

Other examples of checks and balances include the ability of Congress to limit the president’s veto. Should the president veto a bill passed by both houses of Congress, the bill is returned to Congress to be voted on again. If the bill passes both the House of Representatives and the Senate with a two-thirds vote in its favor, it becomes law even though the president has refused to sign it.

Congress is also able to limit the president’s power as commander-in-chief of the armed forces by refusing to declare war or provide funds for the military. To date, Congress has never refused a president’s request for a declaration of war. The president must also seek the advice and consent of the Senate before appointing members of the Supreme Court and ambassadors, and the Senate must approve the ratification of all treaties signed by the president. Congress may even remove the president from office. To do this, both chambers of Congress must work together. The House of Representatives impeaches the president by bringing formal charges against him or her, and the Senate tries the case in a proceeding overseen by the Chief Justice of the Supreme Court. The president is removed from office if found guilty.

According to political scientist Richard Neustadt, the system of separation of powers and checks and balances does not so much allow one part of government to control another as it encourages the branches to cooperate. Instead of a true separation of powers, the Constitutional Convention “created a government of separated institutions sharing powers.” For example, knowing the president can veto a law he or she disapproves, Congress will attempt to draft a bill that addresses the president’s concerns before sending it to the White House for signing. Similarly, knowing that Congress can override a veto, the president will use this power sparingly.

Federal Power vs. State Power

The strongest guarantee that the power of the national government would be restricted and the states would retain a degree of sovereignty was the framers’ creation of a federal system of government. In a system of federalism, power is divided between the federal (or national) government and the state governments. Great or explicit powers, called enumerated powers, were granted to the federal government to declare war, impose taxes, coin and regulate currency, regulate foreign and interstate commerce, raise and maintain an army and a navy, maintain a post office, make treaties with foreign nations and with Native American tribes, and make laws regulating the naturalization of immigrants.

All powers not expressly given to the national government, however, were intended to be exercised by the states. These powers are known as reserved powers. Thus, states remained free to pass laws regarding such things as intrastate commerce (commerce within the borders of a state) and marriage. Some powers, such as the right to levy taxes, were given to both the state and federal governments. Both the states and the federal government have a chief executive to enforce the laws (a governor and the president, respectively) and a system of courts.

Figure 2. Reserve powers allow the states to pass intrastate legislation, such as laws on commerce, drug use, and marriage (a). However, sometimes judicial rulings at the federal level may supersede such legislation, as happened in Obergefell v. Hodges (2015), the Supreme Court case regarding marriage equality (b). (credit a: modification of work by Damian Gadal; credit b: modification of work by Ludovic Bertron)

Although the states retained a considerable degree of sovereignty, the supremacy clause in Article VI of the Constitution proclaimed that the Constitution, laws passed by Congress, and treaties made by the federal government were “the supreme Law of the Land.” In the event of a conflict between the states and the national government, the national government would triumph. Furthermore, although the federal government was to be limited to those powers enumerated in the Constitution, Article I provided for the expansion of Congressional powers if needed. The “necessary and proper” clause of Article I provides that Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing [enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The Constitution also gave the federal government control over all “Territory or other Property belonging to the United States.” This would prove problematic when, as the United States expanded westward and population growth led to an increase in the power of the northern states in Congress, the federal government sought to restrict the expansion of slavery into newly acquired territories.