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3 Branches of Government

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Introduction, a. overview of the three branches of government, b. checks and balances, c. importance of separation of powers, d. interactions between the branches.

• The Federalist Papers
• U.S. Constitution
• Supreme Court decisions

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Checks and Balances

By: History.com Editors

Updated: July 27, 2023 | Original: November 17, 2017

The system of checks and balances in government was developed to ensure that no one branch of government would become too powerful. The framers of the U.S. Constitution built a system that divides power between the three branches of the U.S. government—legislative, executive and judicial—and includes various limits and controls on the powers of each branch.

Separation of Powers

The idea that a just and fair government must divide power between various branches did not originate at the Constitutional Convention , but has deep philosophical and historical roots.

In his analysis of the government of Ancient Rome , the Greek statesman and historian Polybius identified it as a “mixed” regime with three branches: monarchy (the consul, or chief magistrate), aristocracy (the Senate) and democracy (the people). These concepts greatly influenced later ideas about separation of powers being crucial to a well-functioning government.

Centuries later, the Enlightenment philosopher Baron de Montesquieu wrote of despotism as the primary threat in any government. In his famous work “The Spirit of the Laws,” Montesquieu argued that the best way to prevent this was through a separation of powers, in which different bodies of government exercised legislative, executive and judicial power, with all these bodies subject to the rule of law.

The U.S. System of Checks and Balances

Building on the ideas of Polybius, Montesquieu, William Blackstone, John Locke  and other philosophers and political scientists over the centuries, the framers of the U.S. Constitution divided the powers and responsibilities of the new federal government among three branches: the legislative branch , the executive branch and the judicial branch .

In addition to this separation of powers, the framers built a system of checks and balances designed to guard against tyranny by ensuring that no branch would grab too much power.

“If men were angels, no government would be necessary,” James Madison  wrote in the Federalist Papers , of the necessity for checks and balances. “In framing a government which is to be administered by men over men, the great difficulty is this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

Checks and Balances Examples

Checks and balances operate throughout the U.S. government, as each branch exercises certain powers that can be checked by the powers given to the other two branches.

• The president (head of the executive branch) serves as commander in chief of the military forces, but Congress (legislative branch) appropriates funds for the military and votes to declare war. In addition, the Senate must ratify any peace treaties.
• Congress has the power of the purse, as it controls the money used to fund any executive actions.
• The president nominates federal officials, but the Senate confirms those nominations.
• Within the legislative branch, each house of Congress serves as a check on possible abuses of power by the other. Both the House of Representatives and the Senate have to pass a bill in the same form for it to become law.
• Veto power. Once Congress has passed a bill, the president has the power to veto that bill. In turn, Congress can override a regular presidential veto by a two-thirds vote of both houses.
• The Supreme Court and other federal courts (judicial branch) can declare laws or presidential actions unconstitutional, in a process known as judicial review.
• In turn, the president checks the judiciary through the power of appointment, which can be used to change the direction of the federal courts
• By passing amendments to the Constitution, Congress can effectively check the decisions of the Supreme Court. But an amendment must either be proposed by Congress with a two-thirds majority vote in both the  House of Representatives  and the  Senate , or by a constitutional convention called for by two-thirds of state legislatures. Either way, a proposed amendment only becomes part of the Constitution when ratified by legislatures or conventions in three-fourths of the states (38 of 50 states).
• Congress (considered the branch of government closest to the people) can impeach both members of the executive and judicial branches.

Checks and Balances in Action

The system of checks and balances has been tested numerous times throughout the centuries since the Constitution was ratified.

In particular, the power of the executive branch has expanded greatly since the 19th Century, disrupting the initial balance intended by the framers. Presidential vetoes—and congressional overrides of those vetoes—tend to fuel controversy, as do congressional rejections of presidential appointments and judicial rulings against legislative or executive actions. 

Executive orders, official directives issued to federal agencies by the president, are powers afforded to the executive branch that do not require congressional approval. They are not directly provided for in the U.S. Constitution, but rather implied by Article II, which states that the president “shall take Care that the Laws be faithfully executed.” Executive orders can only push through policy changes; they cannot create new laws or appropriate funds from the United States treasury. 

Overall, the system of checks and balances has functioned as it was intended, ensuring that the three branches operate in balance with one another.

Roosevelt and the Supreme Court

The checks and balances system withstood one of its greatest challenges in 1937, thanks to an audacious attempt by Franklin D. Roosevelt to pack the Supreme Court with liberal justices. After winning reelection to his second term in office by a huge margin in 1936, FDR nonetheless faced the possibility that judicial review would undo many of his major policy achievements.

From 1935-36, a conservative majority on the Court struck down more significant acts of Congress than any other time in U.S. history, including a key piece of the National Recovery Administration, the centerpiece of FDR’s New Deal .

In February 1937, Roosevelt asked Congress to empower him to appoint an additional justice for any member of the Court over 70 years of age who did not retire, a move that could expand the Court to as many as 15 justices.

Roosevelt’s proposal provoked the greatest battle to date among the three branches of government, and a number of Supreme Court justices considered resigning en masse in protest if the plan went through.

In the end, Chief Justice Charles Evans Hughes wrote an influential open letter to the Senate against the proposal; in addition, one older justice resigned, allowing FDR to replace him and shift the balance on the Court. The nation had narrowly averted a constitutional crisis, with the system of checks and balances left shaken but intact.

This Is How FDR Tried to Pack the Supreme Court

When his New Deal legislation kept getting struck down, FDR proposed a law targeting justices over the age of 70.

War Powers Act

What Is the War Powers Act? The War Powers Act—officially called the War Powers Resolution—was enacted in November 1973 over an executive veto by President Richard M. Nixon. The law’s text frames it as a means of guaranteeing that “the collective judgment of both the Congress and the President will apply” whenever the American armed […]

All Amendments to the US Constitution

Since the Constitution was ratified in 1789, hundreds of thousands of bills have been introduced attempting to amend the nation's founding document. But only 27 amendments to the U.S. Constitution have been ratified.

The War Powers Act and Presidential Veto

The United States Congress passed the War Powers Act on November 7, 1973, overriding an earlier veto by President Richard M. Nixon , who called it an “unconstitutional and dangerous” check on his duties as commander-in-chief of the military. 

The act was created in the wake of the Korean War and during the Vietnam War and stipulates that the president has to consult Congress when deploying American troops. If after 60 days the legislature does not authorize the use of U.S. forces or provide a declaration of war, soldiers must be sent home.

The War Powers Act was put forth by the legislature to check the mounting war powers exercised by the White House. After all, President Harry S. Truman had committed U.S. troops to the Korean War as part of a United Nations “police action.” Presidents Kennedy , Johnson and Nixon each escalated the undeclared conflict during the Vietnam War .

Controversy over the War Powers Act continued after its passage. President Ronald Reagan deployed military personnel to El Salvador in 1981 without consulting or submitting a report to Congress. President Bill Clinton continued a bombing campaign in Kosovo beyond the 60-day time in 1999. And in 2011, President Barack Obama initiated a military action in Libya without congressional authorization. In 1995, the U.S. House of Representatives voted on an amendment that would have repealed many of the Act’s components. It was narrowly defeated.

State of Emergency

The first state of emergency was declared by President Harry Truman on December 16, 1950 during the Korean War. Congress did not pass The National Emergencies Act until 1976, formally granting congress checks on the power of the president to declare National Emergencies. Created in the wake of the Watergate scandal , the National Emergencies Act included several limits on presidential power, including having states of emergency lapse after a year unless they are renewed.

Presidents have declared almost 60 national emergencies since 1976, and can claim emergency powers over everything from land use and the military to public health. They can only be stopped if both houses of the U.S. government vote to veto it or if the matter is brought to the courts.

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Checks and Balances, The Oxford Guide to the United States Government . Baron de Montesquieu, Stanford Encyclopedia of Philosophy . FDR’s Losing Battle to Pack the Supreme Court, NPR.org . State of Emergency, New York Times , Pacific Standard , CNN . 

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U.S. Constitution.net

Checks and balances in the constitution, separation of powers.

The U.S. Constitution establishes three branches of government: executive , legislative , and judicial . The President leads the executive branch, enforcing laws, commanding the military, and conducting foreign policy. The legislative branch, composed of the House of Representatives and the Senate, makes up Congress. Congress creates laws, declares war, raises and collects taxes, and performs other key functions. The judicial branch, headed by the Supreme Court, interprets the laws and ensures they align with the Constitution through judicial review.

This separation prevents any single branch from overwhelming the others. The President can veto laws passed by Congress, but Congress can override the veto with a two-thirds vote. The President appoints judges, but these appointments must be confirmed by the Senate.

Chevron Deference allows executive agencies to interpret vague laws, potentially leading to an overreach of executive power. The upcoming Supreme Court case, Loper Bright Enterprises v. Raimondo , may reevaluate Chevron Deference's impact.

The Appointments Clause mandates that officials with significant power must be nominated by the President and confirmed by the Senate, ensuring accountability through elected representatives.

In-house tribunals, used by agencies for adjudication, often operate without established rules and lack the impartiality of real courts. Without juries, these tribunals provide no check on judges and prosecutors.

The Major Questions Doctrine reassures us that Congress must clearly authorize significant economic or political regulations. This doctrine was pivotal in Biden v. Nebraska , where the Supreme Court ruled against the Department of Education's attempt to erase student loan debt under the HEROES Act.

Iraq's Constitutional Court has moved away from being a legal safeguard to becoming a political tool, weakening its federal system. This misalignment is evident in the unconstitutional establishment of courts and recent rulings that tilt balance towards dominant factions.

Checks and balances remain central to preventing tyranny. The U.S. Constitution offers mechanisms to pull back on any one branch's power, and it's our responsibility to use these tools well and preserve the intended equilibrium.

The presidential veto allows the President to reject legislation passed by Congress, preventing it from becoming law unless Congress can override the veto with a two-thirds majority in both the House and Senate. This ensures that no hasty or ill-considered legislation becomes law without considerable support and deliberation.

Congressional oversight acts as a pivotal check on the executive branch. Through hearings, investigations, and the power of the purse, Congress can monitor, influence, and restrict the activities of the executive branch. The House Oversight and Reform Committee can summon executive officials to testify under oath, ensuring transparency and accountability.

Judicial review allows the judiciary to interpret the Constitution and overturn laws or executive actions that are found to be unconstitutional. By scrutinizing the executive and legislative branches, the judiciary safeguards civil liberties and maintains the integrity of the Constitution.

The Senate's role in confirming presidential appointments prevents any unilateral imposition of power within the executive branch. The power of impeachment and removal exemplifies the reciprocal checks among the branches. The House of Representatives can impeach federal officials, while the Senate conducts the trial and can remove them from office with a two-thirds vote.

The power to declare war is reserved explicitly for Congress, preventing the executive from unilaterally engaging in military conflicts without legislative approval. Beyond these constitutional mechanisms, various laws and regulations further embed checks into the system, such as the War Powers Resolution of 1973 and the Budget and Impoundment Control Act of 1974 .

Effective checks and balances require active participation and vigilance from all three branches, as well as from the American populace. The Founding Fathers designed this system to be dynamic, adaptable, and resilient, ensuring that no single entity could dominate the governance of the Republic.

Threats to the Separation of Powers

One significant contemporary threat to the separation of powers is executive overreach, exemplified by the growth of the administrative state. Executive agencies have accumulated powers that traditionally belong to the legislative and judicial branches. Chevron Deference, established by the Supreme Court's ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), instructs courts to defer to an agency's interpretation of ambiguous statutes within its purview, provided the interpretation is reasonable. 1 While initially intended to expedite the implementation of complex regulations, Chevron Deference has effectively allowed agencies to assume Congress's lawmaking role.

This deference undermines legislative accountability, as lawmakers can vaguely draft laws and leave detailed rules to be interpreted by unelected officials. Justice Neil Gorsuch points out that such deference leads to a troubling abdication of judicial responsibilities. 2 The upcoming Supreme Court case, Loper Bright Enterprises v. Raimondo , presents an opportunity to reassess and possibly overturn this doctrine, reasserting the judiciary's role in maintaining constitutional balance.

Another issue threatening the separation of powers is the rise of in-house tribunals. These quasi-judicial bodies within administrative agencies adjudicate disputes according to agency-specific rules, often bypassing the traditional court system. These tribunals combine prosecutorial and judicial functions in one body, violating the principle of impartiality that upholds the judiciary. Without the established safeguards of procedure and evidence that govern regular courts, these tribunals can become tools of executive overreach.

The absence of a jury in these in-house tribunals further exacerbates the problem. Juries serve as a fundamental check on judicial and prosecutorial power, ensuring that the community has a role in the administration of justice. The removal of this crucial check shifts the balance of power decidedly to the executive, subverting the intended equilibrium among the branches of government.

The Executive's tendency to address major questions of economic and political significance without clear congressional authorization is increasingly prevalent. The Major Questions Doctrine, recently revitalized by the Supreme Court, maintains that issues of substantial importance must be clearly sanctioned by Congress. The Court's decision in Biden v. Nebraska nullified the Department of Education's extensive forgiveness of student loans under a tenuous interpretation of the HEROES Act, 3 underscoring that such significant decisions require unequivocal legislative approval.

These threats to the separation of powers underscore the urgent need to reinforce our constitutional safeguards. Robust checks and balances are essential to prevent any single branch from accumulating excessive power. Vigilance and corrective measures are crucial to preserve the freedoms that the U.S. Constitution protects.

Constitutional Tools to Reinforce Checks and Balances

The Appointments Clause is a cornerstone provision in maintaining the delicate balance of power among the branches of government. It ensures that appointments to positions of significant authority within the federal government receive scrutiny and consent from multiple branches. 1 Article II, Section 2 of the U.S. Constitution specifies that the President nominates officials and the Senate confirms them, creating a dual-consent process that prevents the executive branch from unilaterally filling key positions. This system of checks promotes transparency and accountability, aligning with the republican principles of governance.

The Major Questions Doctrine plays a critical role in preserving the separation of powers by demanding that significant regulatory decisions, especially those of vast economic or political impact, be clearly authorized by Congress. This doctrine asserts that agencies cannot assume broad regulatory authority unless explicitly granted such power by the legislature. This is fundamental in preventing executive overreach, compelling agencies to stay within boundaries set by the legislative branch. In Biden v. Nebraska , the Supreme Court relied on this doctrine to prevent the Department of Education from enacting sweeping student loan forgiveness measures under ambiguous statutory authority, underscoring the necessity of clear legislative instructions for significant regulatory actions. 2

The Constitution's provision for judicial review serves as a vital tool in maintaining the balance of power. Through Marbury v. Madison , the judiciary has the authority to assess the constitutionality of legislative and executive actions, ensuring that no branch exceeds its granted powers. This judicial check provides a mechanism for the courts to invalidate laws and actions that transgress constitutional boundaries, preserving individual liberties and preventing tyrannical governance. 3

The Non-Delegation Doctrine stems from the principle that legislative powers granted by the Constitution cannot be transferred to another branch. This Doctrine ensures that Congress cannot delegate its lawmaking responsibilities wholesale to executive agencies, preventing the blurring of lines between the legislative and executive branches. Instances where the Supreme Court has invoked this doctrine, though rare, reflect its potential to curtail excessive delegations of legislative power and reinforce the separation of powers. 4

The War Powers Resolution of 1973 exemplifies a statutory attempt to reassert Congressional authority over military engagements. By requiring the President to notify Congress within 48 hours of deploying military forces and limiting the duration of such deployments without Congressional approval, the Resolution serves as a check on the executive's command as Commander-in-Chief, ensuring that significant military actions reflect collective national will through elected representatives. 5

The Impoundment Control Act of 1974 represents another legislative effort to enforce checks on executive power, specifically the President's control over federal funds. By restricting the President's ability to unilaterally withhold appropriated funds, the Act reinforces Congressional authority over the federal budget, ensuring the executive adheres to legislatively determined fiscal policies. 6

The Constitution's explicit provision for the impeachment and removal of federal officials provides a check against abuse of power. This process ensures that high-ranking officials, including the President, are held accountable for "high crimes and misdemeanors." The dual responsibility, with the House of Representatives holding the authority to impeach and the Senate conducting the trial, underscores the seriousness of this tool, ensuring it is exercised judiciously and with broad support. 7

Finally, the requirement for periodic elections serves as the ultimate check in a republican system of government. By mandating regular elections for the House, Senate, and Presidency, the Constitution ensures that those in power remain accountable to the electorate. This electoral mechanism operates as a continuous and dynamic means of checking power, enabling the populace to voice their approval or disapproval of governmental actions. 8

These constitutional tools collectively form a framework designed to maintain a balanced distribution of power among the branches of government. Each tool reflects the philosophical underpinnings of a system built to guard against tyranny, entrusting different powers to different branches and ensuring accountability through a web of checks and balances. This intricate design showcases the foresight of the Founding Fathers, whose commitment to liberty and republicanism continues to guide and protect the governance of the Republic.

Case Study: Iraq's Constitutional Crisis

Iraq presents a sobering case study on the dangers of a collapsing separation of powers, which contrasts with the framework designed by our Founding Fathers. Once envisioned to serve as a federal constitutional democracy, Iraq's current trajectory underscores the necessity of maintaining a rigorous system of checks and balances to safeguard liberty and prevent authoritarianism.

The backbone of any constitutional democracy is its judiciary, designed to act as a bulwark against overreaches by the other branches of government. In Iraq, however, the Federal Supreme Court (FSC) has deviated from this foundational role. Instead of serving as an impartial arbiter, it has morphed into a political instrument that frequently oversteps its boundaries, compromising the principles it was intended to uphold. 9

The FSC was established under Law No. 30 of 2005, intended as a temporary measure preceding the establishment of a permanent court through the Iraqi Constitution. However, the required permanent legislation never materialized, resulting in a court that operates on unstable legal grounds. 10

The 2021 amendment to the FSC's establishment, through Law No. 25 of 2021, aggravated the situation. Passed by a simple parliamentary majority, this amendment violated constitutional mandates requiring a two-thirds supermajority for such changes. This disregard for constitutional processes has weakened the court's authority and underscored its susceptibility to political manipulation. 11

The imbalance is visible in the FSC's recent rulings, which have extended beyond the legitimate scope of legal challenges to serve political ends. The court's decision to declare the Kurdistan Oil and Gas Law unconstitutional reflects a capitulation to political pressures rather than a commitment to legal principles. The court's composition, heavily influenced by dominant political factions, ensures that its rulings often favor the federal government at the expense of regional autonomy, creating a centralization of power. 12

The politicization is evident in the court's inconsistent application of legal principles. In some cases, the FSC has intervened prematurely, striking down legislative drafts before they become law. Conversely, it has allowed clearly unconstitutional statutes to remain unchallenged post-enactment due to political expediency. 13

The absence of a jury system in the court's adjudication process further undermines the judiciary's integrity. Juries serve as a critical check, reflecting community standards and providing a mechanism for public accountability within the judicial process. The FSC's operations, devoid of this check, increasingly resemble unilateral decrees rather than balanced judicial deliberations. 14

The consequences of this erosion are profound. The systemic imbalance has facilitated political factionalism, enabling dominant factions to manipulate legal processes to their advantage. This has included altering electoral outcomes and marginalizing elected officials who do not align with the prevailing political agenda. The resignation of Judge Abdulrahman Zebari, citing the court's overreach and political misuse, highlights the need for reform. 15

Iraq's experience provides a contemporary example of the chaos that ensues when the foundational checks and balances are disregarded. It serves as a cautionary tale, illustrating how the absence of a well-established and respected judicial authority can lead to a concentration of power, exacerbating political instability and undermining democratic governance.

The Founding Fathers of the United States, through the design of our Constitution, sought to prevent such a collapse. By investing in a balanced separation of powers fortified with effective checks and balances, they envisioned a resilient republic where no single branch could dominate the others. The importance of this design ensures the proper functioning of government and protects the liberties of the citizenry from the perils of concentrated authority.

The cautionary example of Iraq underscores the necessity of vigilance in maintaining the integrity of these principles. The United States must remain committed to upholding the checks and balances that are the hallmark of our constitutional republic. This dedication preserves our freedoms and reaffirms the wisdom of our Founding Fathers, whose vision continues to guide and protect our nation.

The preservation of our constitutional republic hinges on maintaining the balance of power envisioned by the Founding Fathers. The mechanisms of checks and balances are vital in preventing tyranny and ensuring that no single branch can dominate. Vigilance in upholding these principles is essential for safeguarding the freedoms that define our nation.