The three branches of the U.S. federal government—executive, legislative, and judicial—keep each other in line through a system of "checks and balances." What roles do each play? And who puts the brakes on the POTUS?
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Today, we're bringing you our very own Big Three—the three branches of the U.S. government: the legislative, executive, and judicial branches.
But before we tackle that, let's get one important thing out of the way. The system that keeps it all spinning—checks and balances. Because as Federalist Paper #51 puts it, "Ambition must be made to counteract ambition."
What is the separation of power in the U.S. government? Checks and balances!
The framers were very much aware that the grand ideas and philosophies they laid out in the Constitution would have to be implemented by fallible humans. And fallible humans have a tendency to get a little wild-eyed where power is concerned.
The first step in creating checks and balances was to skirt the whole king issue by splitting the governing power across three branches—something called the separation of power. But that wouldn't be enough. Those branches would need to keep a watchful eye over one another so that no one entity would get too big for its britches.
Fallible humans have a tendency to get a little wild-eyed where power is concerned.
Who checks Congress?
So, let's start where the Constitution starts—Congress. The legislative branch makes laws that govern the people of the nation. Pretty straightforward, right? Of course, that's also an immense, almost staggering amount of power. You've got 535 mostly white, mostly male, mostly well-off people—that's 435 congresspeople and 100 senators—making the rules for hundreds of millions of Americans. What could possibly go wrong?
James Madison had our back on this one. So here's the catch, or in this case, the "check."
In order for a bill from Congress to actually become law, the President has to either sign it or, alternatively, do this thing where he doesn't do anything to it and the bill becomes a law on its own. But if the law says something like "Only Americans whose names end in the letter L are allowed to drive," the President could say "Hey, I don't like that. I'm vetoing it."
A veto override can be helpful if you've got a president who's totally at odds with Congress. There have only been 111 in U.S. history.
But then Congress has the power to veto that veto with a veto override, which requires a two-thirds majority vote in both houses.
That veto override can be helpful if you've got a president who's totally at odds with Congress. Andrew Johnson, for example, had 15 of his vetoes overridden. That's a lot, given the fact that we've only had 111 veto overrides in the history of the United States.
The veto override, in and of itself, is a check, both on Congress and the President. But just because Congress overrides a veto to make that the law, it doesn't mean that that law is good or right. Lucky for us, the framers thought of that one, too.
What about the judicial branch?
Is that the solemn swish of black robes we hear?
There's keepers of the Constitution—the judicial branch, specifically the Supreme Court. If Congress strong-arms a law into being, the Supreme Court can then review it and strike it down if they deem it unconstitutional,
And that power to strike down laws is not constitutional power. It's a power that the Supreme Court essentially gave to themselves in their ruling on Marbury v. Madison.
The ability to grant governmental powers is, in fact, quite an immense amount of power on its own. It's the executive branch's job to prosecute violations of federal law through the Department of Justice. And the prosecutor has the power to bring a case before the Supreme Court or not. And Congress has the power to regulate federal jurisdiction.
In other words, they can decide the kinds of cases that the courts have the power to rule on.
Impeachment and other checks
Congress has the power to impeach members of the federal judiciary. And, of course, they can also impeach the President.
The President is mainly checked by Congress. Impeachment is a big check, but a relatively rare one. More frequently, Congress holds the purse strings and can slow the President's agenda by not budgeting for the things the President wants. They can also pass laws like the 22nd Amendment, which said, Yeah, no more Franklin Delano Roosevelt; we're limiting all presidents to two terms in office.
Franklin Delano Roosevelt became the 32nd President of the United States at the depth of the Great Depression. He served four terms (1933-1945) and instituted a series of programs referred to as the New Deal. He also signed the Social Security Act. Those who collect Social Security pensions and benefits or unemployment have FDR to thank.
But what do we do if the executive goes all rogue and we can't wait for Congress to pass a law or an amendment?
That's where those constitutional stewards, the Supreme Court justices, come into play again. The Supreme Court has the power to declare executive actions unconstitutional. It is a rare bird, that one, but all-important in a government where men are most certainly not angels.
What are the three branches of the U.S. government?
Now that we know how we keep the government from going mad with power, what is it that we're keeping in check?
Let's start with the Constitution itself and the legislative branch.
The legislative branch—Congress
Article I, which sets up the power of the legislative branch, gets far more ink than any other branch. It's four out of the seven pages of the Constitution. But what are these two houses of Congress? Are they alike in dignity? What do they even do?
It's a poorly guarded secret that the framers were a little bit scared of democracy.
It's a poorly guarded secret that the framers were a little bit scared of democracy. Having one large legislative house that's determined by the size of the population? That was scary to them. So we have two houses in our bicameral legislature.
The House of Representatives is the large brass 435-member chamber that's up for election every two years. The more people you have in your state, the more representatives you get in the House.
And then we have the highfalutin Senate. The Senate consists of two Senators from each state, and each gets a six-year term.
While the House and Senate have several separate powers, they have one big collective one—they're the ones who make the laws that govern our country.
The Schoolhouse Rock version is almost never how bills actually become law.
The Schoolhouse Rock version is that the House or the Senate initiates bills, they go to committee, they get out of committee, they're voted on, and then they go to the other chamber for a similar process. And if it passes both houses, it goes to the Resolute Desk of the President of the United States to be signed into law.
We're going to tell you right now, the Schoolhouse Rock version is almost never how bills actually become law.
There are 1000 pitfalls that alter and stymie a bill at every turn. Suffice to say, it is a winding path. Indeed, the one difference between the two chambers is that only the House, not the Senate, can initiate bills to do with spending. This is called the Power of the Purse. The framers thought the people's House should be the one who decides where the money goes.
Who can be a Senator or Representative?
The actual restrictions on who can become a Senator or congressperson are few. You have to be at least 25 years old and have been a U.S. citizen for seven years to qualify. And for the Senate, you have to be 30 years old and a citizen for nine years.
Just because restrictions are few doesn't mean just anyone gets elected to the House and Senate. Because of money and existing power structures, both houses are overwhelmingly white and male, though the most recent house is the most diverse yet. At the time of this article's publication, there have been only ten Black Americans in the history of the U.S. Senate.
The bills that get proposed in either chamber have such a litany of obstacles that only about 3% of proposed bills become law. And most of those are noncontroversial, like naming a courthouse or making an honorary holiday.
Some see the fact that so little legislation is actually passed as terrible. And others see it as a wonderful feature of our democracy because a congress that passes tons of legislation has way too much power.
What other powers does Congress have?
The House has some unique powers—they can break an electoral tie to determine the next president. And that hasn't happened since the insane Hayes-Tilden election of 1876.
The House can also initiate impeachment. But they just initiate; they don't actually remove the official from office.
Many of us know this since we recently had an impeached President. The House starts the procedure. And with a majority vote, that official is impeached. The Senate then holds a trial, and it requires a two-thirds majority of the Senate to remove that official from office.
And this leads us to the unique powers of the Senate. As we said, they try impeachments and remove officials from office. They also confirm presidential appointments for over 2000 different positions. The President picked someone for a job (like a cabinet position or a judge), and 99% of the time, the Senate gives the appointee the thumbs up.
Either house can declare war, which is something we haven't actually done since 1942.
The Senate also picks the Vice President in case of an electoral tie, which happened one time and probably won't again, since nowadays, the VP and President run on the same ticket.
And one final thing—either house can declare war, which is something we haven't actually done since 1942. So how have we been in so much war since then?
And that's your very subtle transition to the powers of the executive.
The executive branch—the President and federal government departments
When you think of the executive branch you think of, well, the Executive—the President.
But the executive branch employs over 4 million people. It is the nation's largest employer by a wide margin. The Department of Defense alone out-employs Walmart by about a million people.
And that's what we think it can be easy to forget—the executive branch comprises not only the President and everyone who works in the Executive Administrative Office, but there are also 15 departments that fall under the banner of the executive branch. Those department heads make up the President's cabinet, along with whomever else the President appoints as an advisor, and hundreds of smaller agencies.
The executive branch employs over 4 million people. The Department of Defense alone out-employs Walmart by about a million people.
Here are the 15 federal departments in the order of their creation.
- State Department. They handle relationships with foreign countries.
- Treasury. They make the money by collecting taxes. This includes the IRS.
- Defense. Our largest department, which includes the military.
- Justice. They enforce laws that protect public safety. This includes the FBI and U.S. Marshalls.
- Interior. The Department of the Interior manages the conservation of our land, which includes national parks.
- Agriculture. That's the USDA. They oversee farming.
- Commerce. They promote our economy and handle international trade.
- Labor. That's our workforce.
- Health and Human Services. That includes the FDA and the CDC. They also manage Medicare and Medicaid.
- Housing and Urban Development (HUD). They address national housing needs.
- Transportation. That's the federal highways and the Federal Aviation Administration.
- Energy. They manage our energy and research better ways to make it.
- Education. They focus on national education and federal student loan programs.
- Veterans. Veterans Affairs programs benefit those who have served in the military.
- Homeland Security. It's their job to prevent and disrupt terrorist attacks within the United States.
Now, there are the President's Constitutional powers, and then there are the President's political powers. Most broadly, with the aid of the many executive departments, the President is tasked with making sure laws are followed through with. And we already know the President can sign bills into law or veto them. The Constitution also empowers the President to appoint people to powerful positions in the cabinet, as well as the Supreme Court, Court of Appeals, and Circuit Courts. All told, the President appoints people to around 4,000 positions, 1,200 of which require Senate approval.
If warlike actions are called police actions, they can be done without congressional approval.
That's a lot of appointment power. And of course, the President is empowered to make treaties with foreign nations and is the Commander in Chief of the US Armed Forces.
But the President cannot declare war.
Here's where we stumble into those political powers not enumerated in the Constitution. Congress has not declared war since World War II. America's presidents have led us into many armed conflicts without congressional approval and simply called them "police actions." Police actions can look like war, act like war, talk like war. But if warlike actions are called police actions, they can be done without congressional approval.
What are executive orders and executive agreements?
So, there are also these things called executive orders where the President simply declares something. And executive orders happen. When Obama wanted immigration policy, and he couldn't get it from Congress, he just signed the DREAM Act. And a lot of undocumented teenagers got to stay in the U.S.
Executive agreements fall along a similar line in terms of skirting Congress, but they are used in place of treaties. The President can just make an agreement with a foreign nation without going through the treaty process.
We should clarify (because these executive orders and agreements sound like a big ol' way around the checks and balances our framers so thoughtfully established) that the Supreme Court can block an order or agreement, and Congress can pass a law that invalidates that action. The only underlying principle is that any executive action has some sort of legal validation process.
It's all about what Congress or the Supreme Court chooses to let fly.
The Vice President
And let's not forget the Veep—the Vice President.
The Vice President has long gotten the short shrift in the United States. For most of the job's history, it was barely a job at all.
The Vice President is President of the Senate. That means that they preside over proceedings, but they only get to vote in the event of a tiebreaker. So, usually, they just don't show up. More recently, the Veep has been tapped to represent the president in matters of foreign relations. And, of course, on the rare occasion that the President dies while in office or resigns, the Vice President gets the world's biggest promotion.
The judicial branch—The Supreme Court
That just leaves one branch hanging, the one that Alexander Hamilton called "the weakest branch" and "next to nothing."
The Constitution is the supreme law of the land and the Supreme Court interprets it. They decide what is or is not constitutional. Article III of the Constitution, which deals with the judiciary, is short and vague. (One scholar told us it was so short and vague because the framers wanted to get the heck out of there before Rhode Island showed up and made a hash of everything.)
The Constitution is the supreme law of the land and the Supreme Court interprets it.
But while the Constitution was vague on the powers of the Supreme Court, we've cleared that up a bit since then. They have less notable powers, which is that they hear cases involving ambassadors, public officials, and states. But most of the time the Supreme Court is an appellate court, which means that it hears appeals. You don't like the outcome of a state or federal court decision? You can appeal it up to a higher court.
And this is important—you're not appealing the verdict of the jury. You're not disputing if you're guilty or not. You're appealing the way that the trial went. You're saying that the laws that you broke were unconstitutional.
This power, which is called judicial review, was granted upon the Supreme Court by the Supreme Court itself in the first landmark case, Marbury v. Madison, which is a delightful tale. We're gonna get into that in the next episode, so let's talk about how a case gets to the highest court in the land—with an immense amount of difficulty.
Appeals to state and local decisions rise slowly but surely through the American court system. But that last step is nigh on impossible. To get your case heard by the nine in DC, you have to file for what's called a writ of certiorari, which honestly, nobody can agree on how to pronounce. That writ tells the court, You should hear my case and here's why.
Between 7,000 and 8,000 writs of certiorari are filed each year. And the Court agrees to hear about 80.
Between 7,000 and 8,000 writs of certiorari are filed each year. And the Court agrees to hear about 80. You're more likely to have your case heard if there's what's called a circuit split, where several of the circuit courts in the U.S. have ruled differently on something and you've got parts of the country interpreting the constitution differently.
The parties in a Supreme Court case aren't a plaintiff and defendant like on The People's Court or Judge Judy—they are petitioner and respondent.
The petitioner lost their last case, and they're petitioning to have it heard. And in the case name, the petitioner's name always comes first. So in a trial like Texas v. Johnson, Texas lost the last case, and they're petitioning to have it reversed.
One more word, it's not lawyers who present arguments in the Supreme Court. They're referred to as advocates.
On oyez.org, you can hear the actual arguments of every single case in the Supreme Court from 1963 up to now—it's wonderful.
The Court hears cases starting in October. They discuss them in conferences, they vote on them, and someone who voted in the majority writes the opinion, which is read some time afterward. Other justices can add their name to that opinion if they have concurring opinions with different legal reasoning. Or if you're on the side that voted the other way, you can write a dissent.
By the way, the vast majority of Supreme Court decisions are unanimous, but like everything, it's never so cut and dry is that. Once the court rules, you have the long circuitous route to the states adopting the ruling into their laws, which can take decades.
Well, there it is three branches in an acorn shell. Thanks for listening to unknown history on quick and dirty tips. We're going to be back next week with part four of our four-part series based on our new book, A User's Guide to Democracy, with a deep dive into the Supreme Court cases that revolutionized how America works.
An excerpt from "A User’s Guide to Democracy: How America Works" by Nick Capodice and Hannah McCarthy, illustrated by Tom Toro (Celadon Books, 2020)
The inefficiencies in the House and the Senate seem like a bug, but they’re actually the whole point. This system is set up to prevent any radical movement or ideology from taking over and changing everything overnight. It takes people voting on issues in election after election to get anything done, waiting up to six years to replace a senator that they disagree with.