Very recently, a colleague confronted me casually: “Is ‘checks and balances’ theoretical?” Before I could even answer in any way, which tipped me off that this was venting and not soliciting true dialogue, this person proceeded to intimate that checks and balances is being ignored by certain people in the government. Immediately I knew the context of the conversation, all of which I missed until I was so obviously coerced into it. It was complaint against impeachment of judges for overturning executive orders/actions of the current president. However, it was clothed in indignance over the DOD removing African-American history from the DOD website. Of course, I had not heard of the DOD doing that as yet. But, I also did not jump on the bandwagon of condemnation, but, I said, “Who did that? Because if they did, I will write them a letter!” Then I learned from them that the accusation was that the DOD had taken down pages about the Tuskegee Airmen and the Navaho Code Talkers. And this was supposed to be a violation of the principle of checks and balances?
Of course, I have learned that usually things that are so passionately objectionable so early in the chain of events are usually overblown. So, I came back and looked into the story. Yes, the DOD did take down the Tuskegee Airmen, and the Navaho Code Talkers, and Jackie Robinson, from their website. However, it was done as a response to the Presidential mandate to remove DEI from all federal institutions, and it was done very quickly and ‘automatically’, by searching on keywords, and deleting anything with DEI words in the webpage/articles, whether or not it was actual DEI language. The Enola Gay was taken down too, which also does not fit into the DEI wheelhouse, but because it contained a DEI word, “gay”, it was inadvertently taken down. Such was the case with the other sites, and so all of them that were in fact not DEI articles were swiftly restored.
But, the conversation bothered me, not because of anything regarding its content, including their political bent, which became immediately obvious, but because of the wild notion that there are no checks and balances in our country, that it is only theoretical, and not put to practice. I find it interesting that it is left-leaning people these days who are only just now screaming for checks and balances.
I suppose people on the left think that the President, and Pete Hegseth, need to be put in check by someone. Listen, I would have indeed written a letter about The Tuskegee Airmen, the Code Talkers, and all the rest, directly to Pete Hegseth, had they actually been taken down for nefarious reasons. I teach my students about them every year, with honor and respect for their great accomplishments during WWII. I would not want them erased from history for any reason, most especially for racism. But that is not what happened, though I feel certain people would never cede that, as it is too advantageous for them not to admit the truth of what actually happened. They will forever claim a racist motivation.
Are there checks and balances in our country? Yes. Are they always used? Are they always used for the right reasons?
There is no single answer for the latter questions. But, the impeachment of judges is indeed the very definition of the use of our constitutional principle of checks and balances. It is probably just that left-leaning people think that is an overuse of it? Or, is it that they think President Trump is overreaching by executive fiat, and he is the one that is not being checked? Or he is being checked, [which is what those judges are doing, using judicial review to overturn an executive action], and they just do not like that the other branch, the legislative, is checking that branch, the judicial, for wrongfully checking the executive branch?
It seems to me that checks and balances are very much in play! Alive and well! Regardless of whether one agrees with one or all of the branches’ actions.
What is the role of the judiciary in our federal government? The primary role of the judiciary is to interpret the law. When a case is brought before them, they are to interpret the applicable law(s) and apply the law to that case. They are to decide what the constitution says about whatever the case is presenting before the court. This is called ‘judicial review’.
Another purpose of the judicial branch is to protect our rights. They do so by putting a check on the other branches and ensuring that the government’s actions [against civilians] do not violate the Constitution.
The judiciary is there also for dispute resolution. One individual against another, or an organization, or government entity, or any combination of those sides of a dispute. They are to apply the existing law in those situations, and should not legislate from the bench.
In doing of all of that, a secondary result is the setting of precedents. The procedures and decisions they use influence future decisions. Precedent basically has the weight of law.
All of those duties, however, are not done in a vacuum or without intervention from the other branches. Just like the constitution gives power to the judiciary to check the President and the Legislation, so does the constitution give those two branches the power to check the courts. And, whether one likes the decision or not, that has been at play of late, and so they system of checks and balances is very much alive!
It is Article II, Section 2, Clause 5 of the Constitution that grants the House of Representatives the authority to impeach federal officials, including the President and judges.
The whole ‘containment’ of the judiciary is stretched across several parts of the constitution, (Article I, Section 2 and 3; Article II, to Section 4), but the net effect of those articles is: both the legislative and executive branches have roles in impeaching and removing federal judges. The House of Representatives can impeach federal judges (including those in the judiciary) with a simple majority vote, and the Senate holds the trial after that, and, with a two-thirds vote, can remove them from office.
So, the fact that the Legislative branch of late has decided to impeach certain judges is in and of itself the proof that checks and balances are not just theory [unless one thinks this is an abuse of power; but, clearly, it is not, even if we disagree with the reasons for starting impeachment procedures].
The courts have checks on the other two branches as well, such as overturning the President’s executive actions, or overturning a law created by congress.
But, the conversation into which I was coaxed was more about Trump’s appointment over the DOD enforcing DEI. The complaint from the left has been concerning his authority to do such a thing. They forget that the Executive branch is granted the authority to do those very things by the ‘vesting’ clause of Article II, and that the Executive Branch is the only branch directly elected by the whole nation, representing the will of “We the People”.
The President’s authority to control federal bureaucracies is mostly derived from Article II of the Constitution. Article II grants the President executive power and the responsibility to “take care that the laws be faithfully executed.” The two sections of this article that apply are:
- Section 1 “vests” the executive power in the President, giving him the authority to manage the executive branch.
- Section 3 includes the “Take Care Clause,” which states: “he shall take Care that the Laws be faithfully executed,” implying that the President has control over the implementation of federal laws, which includes overseeing the federal bureaucracy.
So, if the president directs his appointees to change things in their various bureaus, he has all authority to do so. The President appoints the heads of most federal agencies, and he can issue executive orders to direct how bureaucracies operate, further strengthening executive control over them. He has the power granted by the constitution to do that. However, this power is often balanced by laws, regulations, and the need for Senate approval in certain appointments. So, the notion that checks and balances are merely theory today is just grandstanding. They are alive and well.
Yes, the checks being used recently [that I am aware of] fall into favor with me, and obviously most Americans, but those suffering with Trump Derangement Syndrome are obviously unhappy with it. Well, guess what, the many executive orders that Biden signed were utterly displeasing to me, but I did not once complain that checks and balances had vanished!
No, the congress and the judiciary did not do their job to my satisfaction during the O>B years, but another constitutional check on all branches was recently applied, the most important one, and that is the vote of the majority of Americans to change the executive branch. And the things Trump is now doing are not a surprise! He told us, the American people, that he was going to do these things, and we [the vast majority] wanted him to do so! So, that, in and of itself, is a major check in the constitutional checks and balances system.
People just need to be honest and say they just don’t like what is being done. To insinuate that our government has fallen apart and the constitution is useless is getting a jump on the zombie apocalypse; it’s playing Chicken Little. It’s not that bad, yet.
The biggest check that I want used, and have screamed for nearly forty years, is an Article V convention of states. If any part of our government is run amuck, it’s the legislative branch. People have transformed a voluntary service to the country into a lifelong career and a means to get rich. And both parties are guilty of it. Most of our congressmen are in the pockets of lobbyists and donors, pandering to special interest groups and voting for whatever conveniences their political survival the most. The various states all need to call for an Article V convention, and at the very least set term limits on the House and the Senate, because they are never going to do it themselves! Other things could be done at that convention, but this is not the time to discuss those. However, there is a check for all the branches called an Article V Convention of States, and I think it is past time that we have that.