Representative Government: The Founders’ Design For The American People To Rule Within A Civil Society – Guest Essayist: James D. Best

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James Madison wrote, “Ambition must be made to counteract ambition.” He and his fellow delegates enabled this objective by enumerating specific, balanced powers to each branch, and then purposely giving each branch checks on the other branches.

The phrase checks and balances has become so commonplace, it is often spoken as if it were a single word, but in the eighteenth century, the phrase represented two distinctly different concepts. John Adams may have been the first coin the phrase in his 1787 publication, A Defense of the Constitutions of Government of the United States, but balances and checks is the phrase used in The Federalist, and that is the sequence Madison would have thought appropriate. First balance powers between the branches of government, and then place checks on those powers so they may not be abused.

As the first three words of the Constitution assert, the Framers felt the American people should rule the government, not vice versa. Arguably then, congressional checks on the executive are the most important because House members and one-third of the Senate face election every two years, which should keep them attuned to the public mood.

So, what powers and checks did the Framers give Congress to preclude the president from becoming king?

  • The Constitution gives the power to make laws solely to Congress. Constitutionally, the president can only enforce laws made by Congress. Recent history has seen an erosion of this check on executive powers. Congress gave away a good portion of its authority by passing vague laws which allowed the regulatory state to craft the details that determine what is legal and what is against the law. The Congressional Review Act of 1996 allows Congress to overrule an agency regulation, but it must be done within sixty days, and if the president vetoes the overruling, then congress must override the veto. Congress has also failed to curtail the abuse of executive orders that effectively make or alter laws. Stretching the concept of discretionary prosecution also weakened the lawmaking authority of Congress.
  • Congressional power of the purse is the strongest check over the executive. The amount of money Congress appropriates determines what the executive branch can do and how much of it they can do. Congress eroded this power by ceasing to debate and pass individual appropriations bills. Instead, they pass omnibus packages and continuing resolutions, which aggregate spending decisions to obscure accountability.
  • An axiom of Washington is that personnel is policy. Senate approval of appointees remains a potent congressional check on the president. When in disagreement with the president, Congress can withhold or delay approval of the leadership in the executive branch. Since threats to withhold funding have become mainly bluster, approval of appointments has taken on more significance.
  • Foreign policy is an executive prerogative, but the Framers intended senate approval of treaties to check questionable international agreements. Recent use of a “nonbinding agreement” have effectively circumvented this check. A second, obviously weakened congressional foreign policy check is the authority to declare war.
  • Other congressional checks on the president include a veto override provision; approval of appointment to fill a vice presidential vacancy, and a requirement that the president deliver to Congress a State of the Union message. From a practical perspective, these do not seriously impair a president.
  • The ultimate congressional check on the executive is impeachment, but in the nation’s history, there have been only two impeachments and zero convictions.
  • That leaves the most powerful check of all. One that is unmentioned in the Constitution. To make new law, Congress must know how existing law is administered. This requires Congress to examine the operational side of the executive branch. This power is called congressional oversight, and although not enumerated in the Constitution, the Supreme Court has confirmed this implied power on several occasions. Investigative powers may now be the most important congressional check on the executive branch, but even this prerogative has been eroded in recent history by delay, redaction, and defiance of congressional subpoenas. Even a contempt of congress resolution has been brushed aside as little more than an embarrassment.

The Framers knew the country needed a stouter government than the Articles of Confederation provided, but they had only recently fought a war to escape a king and had no intention of reimposing that kind of oppressive power on the new nation. The country needed a stronger government, but not so strong it could override the will of the people. Instead of a Goldilocks government, they balanced power and designed an elaborate set of checks so government could govern adequately, but Lilliputian ropes would harness it from trampling the little people.

Gouverneur Morris, the most frequent speaker at the Constitutional Convention, said, “This magistrate is not the king. The people are the king.” Despite an artful internal design, the Framers intended the ultimate check on the national government and the executive to be the people. The ballot box is still a potent check on runaway power.

Alexander Hamilton said in Federalist 21,

The natural cure for an ill-administration, in a popular or representative constitution, is a change of men.

John Adams wrote,

There is a simple sense in which at every election the electorate hold their representatives to account, and replace those who have failed to give satisfaction. This fundamental check is, we might say, the essence of the liberty to be found in representative government.

James D. Best, is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

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