Until recent times every American student has learned the axiom of United States’ constitutional government that our 3-headed federal construct is limited by checks and balances built into the system. The three branches—executive, legislative and judicial—exercise certain powers and oversights that in theory offset one another. Many people err, however, when they consider the branches equal. They are not. For example the shoe and the foot are both larger than the pebble, but the tiny stone in the boot can make walking an uncomfortable undertaking. Two entities do not have to be equal in order for one to judiciously restrict the other. The three federal branches have different functions, constitutional powers, and responsibilities. They are not equal. One of the great distortions of the Twentieth Century was the emergence of the courts as power players in the national arena. Their portfolio for cases brought before them is to determine if matters of law were applied correctly so that plaintiffs and defendants could rely on a just system.
My description of the legal system will not be found in Black’s or Blackstone. It is simply my interpretation of The Constitution of the United States of America and its recognition of the necessity for a system of courts to oversee disputes between citizens and confrontations between citizens and governments. This piece is a perception rather than a précis. In my view there appear to be three primary determinants for identifying the relative power of a branch of government: the constituency, its role, available remedies for enforcing its actions. For example, the President is the Commander-in-Chief of the Armed Forces and the Secretary of Defense is a cabinet level position in the Executive Branch. The people and the various electors choose the President who appoints the Secretary of Defense…subject to Senate confirmation. The House of Representatives is responsible for funding the military, but is not constrained by the desires of the President or his SecDef. In essence, the President has, subject to the War Powers Act and posse comitatus limitations, the entire military apparatus plus various federal agencies with police power to enforce the law. The Congress does hold the “power of the purse,” and the Courts have the force of decree but must rely on voluntary compliance because the courts have no police or military power.
Historically, in my view, there have been two great shifts in the balance of power among the three branches. The 1803 case, Marbury vs. Madison, established the notion of judicial review and the Supreme Court’s authority for determining the constitutionality of legislation and executive actions. Prior to this ruling the Court was viewed as a mere dispute-resolution mechanism. The other action that I believe transformed the balance of power was the ratification of the Seventeenth Amendment which altered the method for selecting U.S. senators from being appointed by their respective state legislatures to direct popular vote by the citizens of each state. The former constituents for senators were THE STATES. The amendment changed their obligations and loyalties to a more populism-oriented constituency. Surely there are additional developments that have altered the delicate balance envisioned by the Framers, but I suspect these two would make the “Power Shifting Hall of Fame.”
Even now with the additional power for the Supreme Court and the alteration of the senators’ fidelity, I believe the House of Representatives remains as the most powerful portion of the federal government … if the country follows constitutional law. Controlling the financial elements for most of the federal government should give the House extraordinary leverage for determining the policies and direction of the nation. As the direct representatives of the people, the House can protect the peoples’ interests from encroachment by the other branches and the bureaucracy. Clearly the House has failed in a number of ways. The House of Representatives with agreement by the Senate has ignored or abrogated some of its constitutional duties by transferring them to other governmental or private sector entities thus minimizing its oversight capabilities. The House has ignored its fiscal responsibilities by over spending and through massive borrowing to fund unconstitutional programs, departments, agencies and bureaus.
We have had inter-branch faceoffs in the past as one branch or another sought to increase its power or to preserve its niche. Some have been ugly, and others were subtle, but the bottom line is that the 3 branches of our federal government are NOT equal. If our federal government were operating in a constitutionally pure manner, the House would be the most powerful entity in the federal government because of its fiscal control. It’s true that the Congress cannot lower the pay of the sitting federal judges, but they can abolish and/or create federal circuits and judgeships at will. This, in effect, allows the Congress to rein in a runaway judiciary. Congress can refuse to fund various and sundry executive branch department, and thus, render them useless. Some people fear the power of the purse that is given to the “Peoples’ House,” but a dispute or confrontation between branches of government is to be preferred to all of them vigorously defending the government’s interests…..as they do now. We need balance. We do not need equality among the branches. In fact we need balance and counterbalance.
Comment: cearlwriting@hotmail.com
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