Checks and Balances

9 Key excerpts on "Checks and Balances"

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  Allocating Authority

  Who Should Do What in European and International Law?

  • Joana Mendes, Ingo Venzke, Joana Mendes, Ingo Venzke(Authors)
  • 2018(Publication Date)
  • Hart Publishing

    (Publisher)

  While conditional on the strength of the applicable Checks and Balances, the outcome has at least the potential to be better informed, more inclusive, less divisive, and hence politically ‘better’ overall. A. Conceptualising ‘Checks’ and ‘Balances’ The phrase of ‘Checks and Balances’ combines two elements that are conceptually distinct. A ‘check’, as understood here, constitutes a form of control by one author-ity over the exercise of another authority’s competence, usually ‘by authorizing it to play a part, although only a limited part, in the exercise of the other’s functions’. 11 This may be a formal veto right, a conditional right to overrule another actor’s decision, or the ability to postpone or suspend a decision. For the idea of ‘balanc-ing’, by contrast, it suffices to create a separate site of authority that provides a political counterweight to the actor that is to be balanced (while checks always also involve an element of balancing, the reverse is thus not necessarily the case). Such a balancing site may or may not have consequential decision-making power of its own. If it does not—having, for example, only the power to issue non-binding 119 Checks and Balances in Global Governance 12 Madison, Hamilton and Jay, above n 5, 320 and 319 (no 51). resolutions and recommendations—we may think of it as a form of ‘opinion bal-ancing’, making sure that other voices can articulate a position of their own and have a chance of being heard before a final decision is being taken elsewhere, or to criticise it afterwards. Alternatively, where the decisions of a balancing site do have binding force for the same set of addressees and run counter to another authority’s decision, the result is normative incongruity and conflict that may require resolu-tion through an appropriate mechanism. For both Checks and Balances to fulfil their functions meaningfully, the relevant institutions, or organs, must draw authority from different sources of legitima-tion.

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  The Law As a Conversation among Equals

  • Roberto Gargarella(Author)
  • 2022(Publication Date)
  • Cambridge University Press

    (Publisher)

  In Latin America, as I will argue, the unfortunate decision was due to what I would call, without hesitation, a major design error. From the time of independence, enlightened, even brilliant, discus- sions of constitutional matters have taken place in the region, and a number of interesting institutional mechanisms were conceived. This does not mean, however, that very relevant mistakes were not made, such as the one we are going to review next that relates to a peculiar variation of the “Checks and Balances” model (an “impure” model, as we shall see). In the United States, meanwhile, the original (or “pure,” as I shall call it) design of the “Checks and Balances” system turned out much more promising, but nevertheless also, and from the outset, open to serious flaws. Basically, and from the “foundational” obsession with the 140 presidentialism: busting the Checks and Balances overreach of legislative assemblies at the local level, the systems of Checks and Balances created were highly skewed against Congress, which was taken as the most threatening institution of all the existing ones. Hence the faith put, somewhat naively, in balancing the power of Congress with a strong executive (in charge of the armed forces and the administration and, thus, a significant portion of the budget). Unfortunately, the execu- tive little by little expanded its authority (as would, by other means, the judiciary), until it attained a threatening degree of control over the entire system. The fact that this model was vulnerable from the beginning to such developments (the self-expansion of the executive and judicial branches) speaks to the limits of the much-revered American model of “Checks and Balances” that were evident since its formulation.

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  The Promise of Human Rights

  Constitutional Government, Democratic Legitimacy, and International Law

  • Jamie Mayerfeld(Author)
  • 2016(Publication Date)
  • University of Pennsylvania Press

    (Publisher)

  If Congress does its duty, the matter will not come before the president or the courts, but their independent power to block unconstitutional laws in case of congressional malfeasance reminds Congress of its constitutional ob-ligations. Checks and Balances thus perform an educative and reforming function. They serve not merely as an insurance mechanism, but as a means of habituating actors into virtuous behavior and thus (in good Aristotelian fashion) making them virtuous. They foster dialogue, thus creating possibili-ties for mutual learning and assistance as well as mutual supervision. In a constitution of divided powers and mutual checks, John Adams wrote, “a general emulation takes place.” 14 We must stay clear of two persistent confusions, one regarding institu-tional design and the other regarding the motivation of the parties. The first is an identification of Checks and Balances with a strict separation of powers scheme in which functionally defined branches enjoy undisturbed authority within their respective spheres. An example of this view is the theory of the unitary executive, supported by a selective (and mistaken) reading of Alexan-der Hamilton’s Federalist essays, which in its most extreme version holds that the president has sole decision-making power on executive matters. 15 The question is how we should understand the concepts of separation of powers and Checks and Balances. I do not intend to pit these two concepts against each other, since the meaning of both is what needs to be determined. Theorists often define one in terms of the other, and this is to be expected, because on the most plausible accounts they are functionally related. The question is which model ought to underlie both concepts. For our purposes, I shall distinguish between a “strict separation model” 16 and a “mutual inter-ference model,” and argue for the latter over the former. Not only is the strict separation model contradicted by numerous provi-sions in the U.S.

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  African Governance Report II, 2009

  • United Nations Economic Commission for Africa(Author)
  • 2009(Publication Date)
  • United Nations Publications

    (Publisher)

  And in Nigeria the 120 African Governance Report II executive is perceived as extraordi-narily powerful, dominant across the entire governance system (box 4.1). This chapter explores how the executive in Africa has been suf-ficiently or effectively checked and balanced by the other branches of government—the legislature and judiciary—as well as by civil society organisations and the media. The major finding of the chapter is that while constitutional reforms and institutional changes are ongoing in Africa, executive power still pre-dominates, vitiating the principle of Checks and Balances. Separation of powers facilitates and ensures Checks and Balances The constitution determines the distribution of political power in a democracy. The purpose and effec-tiveness of political power are prod-ucts of the dynamic interactions between the constitutional provisions, the political predispositions and capa-bilities of those managing the execu-tive, legislative and judicial branches and the major actors in civil society. The politicians in control of a demo-cratic government are periodical-ly elected. While in charge of the institutions of government they are expected to be accountable to the legislature. Legislators are expected to apply Checks and Balances to the policies, performance and activi-ties of those in other key governance institutions to ensure that they con-form to the provisions of the consti-tution and the rule of law and due process of law, and that they deliver their electoral mandates. Those who support the government in formu-lating and implementing policies— civil servants and law enforce-ment personnel—are required to be accountable and transparent in the performance of their duties.

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  Constitutionalism and the Role of Parliaments

  • Katja S Ziegler, Denis Baranger, Anthony W Bradley, Katja S Ziegler, Denis Baranger, Anthony W Bradley(Authors)
  • 2007(Publication Date)
  • Hart Publishing

    (Publisher)

  For one thing, as Barendt has explained, ‘checks-and-balances’ entails a different notion of separation of powers from accounts which rest on a more formal separation, whether of institutions or of functions. 74 Gusy and Ziegler seem, by contrast (and given the understand-ing of separation of powers from which they are working), to assume that these notions can be combined. For another, as we saw in section II, the term ‘control’ appears for Gusy to be a catch-all label encompassing a wide variety of accountability mechanisms, both political and legal. In reality, however, the degree to which one supports any one of these mechanisms is likely to vary depending upon the priority one accords to political as opposed to legal checks on the executive: something which will in turn depend upon one’s underlying political theory—and, en route , on one’s theory of the separation of powers understood in a substantive sense. It is problematical for any theorist to assume that there is one pre-determined definition of the separation of powers which is in turn associated—without more—with the features associated with a particular legal system (for example, an idea of ‘control’ encompassing a radically wide variety of checking mechanisms). In reality, supporters of different substantive accounts of the separation of powers will accord variable levels of priority to the different ‘control’ mechanisms discussed by Gusy, and might or might not agree with Ziegler’s apparent support for the ‘parliamentarisa-tion’ of decisions to deploy the military.

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  Limiting Government

  An Introduction to Constitutionalism

  • András Sajó(Author)
  • 1999(Publication Date)
  • Central European University Press

    (Publisher)

  Consequently, the executive took only initial steps and the comptroller gen-eral did not have the right to make a final decision on his own. 94 Checks and Balances and the Separation of Powers Actual models for the possible connection between the executive (presidential) and legis-lative branches � 1 . 2. 3 . 4. 5. 6. 7. 8. Sol directly elected head of the executive + + + + + ---government appointments are made + -+ -----independently of the parliament government is not answerable to tl1e + + ------parliament (absence of no-confidence) ilie executive may dissolve ilie parlia-+ -+ + -+ --ment at any time ilie executive may pro pose laws + -+ + + + + -1 . Absolute presidential; 2. USA; 3 . Fifth French Republic; 4. Weimar; 5. Bulgaria (1991); 6. vVest-minster; 7. Third French Republic; 8. Absolute parliamentary system 3.4. ADDITIONAL COUNTERBALANCING FACTORS 3 .4 .1. THE ROLE OF THE]UDICIARY IN THE BALANCING OF POWERS When we speak of Checks and Balances with regard to the judiciary, we find interdependencies again. Often it is another branch of power that makes decisions concerning the appointment of judges and the estab-lishment of judicial organizations. But the other branches rarely have the authority to make judgments. Similarly, they lack the authority to inter-vene in concrete matters or to exercise any form of supervision. Members of supreme judicial organizations are frequently elected by the parliament, while other judges are normally appointed by the execu-tive, which may influence their careers in certain cases. 46 All this is not of an imperative logic. There are systems (like the Ital-ian Supreme Council of the judiciary) where self-governin g bodies of judges decide on these issues. Elsewhere, the cooperation of the other branches is required. The U.S. president must se ek the Senat e's ap-proval when appointing Supreme Court justices. 46 This is the reason why judges may be transferred (and promoted) only if the per-son concerned agrees.

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  The Presidency and the Challenge of Democracy

  • M. Genovese, L. Han, M. Genovese, L. Han(Authors)
  • 2006(Publication Date)
  • Palgrave Macmillan

    (Publisher)

  Chapter Four The Constitutional Checks and Balances that Neither Check Nor Balance Nancy Kassop The genius of the constitutional system that Madison gave us was its fundamental reliance on the concept of Checks and Balances as the vehicle for guaranteeing limits on government power. Each branch would monitor or watch over the others to insure that no branch exceeded its authority or invaded another’s sphere. Such a system of governmental “insurance” depended upon each branch exercising its responsibility and vigilance at all times. Throughout history, examples abound of one renegade branch edging beyond its borders, only to be reined in by either one or both of the others. But what if the enforcing institutions do not perform this role, either inad- vertently or intentionally? Are we at one of those historical junctures where the institutions of government are out of balance, and are in need of being reminded of the essential purpose of Madison’s structural design and allo- cation of authority? It is worth recalling that the institution of the presidency in its modern form is light years away from the expectations of the framers when they provided for it in Article II of the Constitution—with the caveat that they did expect that the ambiguous office their handiwork created would evolve and assume shape over time, through a variety of occupants and historical forces and events that could not be predicted in 1787. It is equally useful to note that, as with so much of the governmental structure authorized by the Constitution, the presidency was, also, a product of compromise and “best judgment” at the time, but that it was an entirely new and unique institu- tion, and was, as such, an experiment. Its long-term success owes much to the dignity, force, and substance that George Washington brought to it in its initial form and as its first occupant.

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  Religion, Law and the Constitution

  Balancing Beliefs in Britain

  • Javier García Oliva, Helen Hall(Authors)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  13

  There are mechanisms which prevent any one holder of power from exercising it without restraint, but this is not achieved by an impenetrable wall of separation. Seeking to apply the separation of powers in the classic Montesquieu14 séparation des pouvoirs sense is undeniably problematic in the context of the United Kingdom. It is no coincidence that some of the leading undergraduate textbooks on constitutional law elect to give the relevant chapter a neutral title, avoiding the phrase altogether. For example, Bradley and Ewing refer to ‘[t]he relationship between legislature, executive and judiciary’.15 They also correctly acknowledge at the outset that some of the classic constitutional writers on the UK context have regarded the doctrine with some suspicion, citing Dicey16 and Jennings.17

  p.285

  Interestingly, however, Dicey is perhaps more nuanced than Bradley and Ewing suggest. They quote his dismissive observation that the separation of powers was ‘the offspring of a double misconception’.18 Read in context, Dicey’s exact words were that the doctrine was ‘in some sort the offspring of a double misconception’ (emphasis added). In his view, this two-fold misunderstanding is based upon Montesquieu himself having misconstrued some aspects of the English19 Constitution, and the theories of Montesquieu themselves subsequently having been distorted and misapplied by the French statesmen of the Revolution.

  Furthermore, at other points in his work, Dicey effectively acknowledges the merits of governmental systems operating a very different model of relations between executive and legislature. He expressly admits that there are pros and cons with both kinds of structure:

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  Madison's Nightmare

  How Executive Power Threatens American Democracy

  • Peter M. Shane(Author)
  • 2009(Publication Date)
  • University of Chicago Press

    (Publisher)

  2 Checks and Balances in Law and History The presidency is both a political institution and a constitutional offi ce. Hence, the proper scope of presidential power is a question not only of politics, but also of law. The campaign to “imperialize” the presidency has been a campaign fought not only in the Oval Offi ce or in the halls of Con-gress, but also in courtrooms, lawyers’ offi ces, and scholarly law reviews. Because of the law’s complexity, however, this is a battle whose terms are not always transparent. Part of what makes the legal debate complex is that it is multilayered, but not symmetrical. On one side of the debate are presidentialists, advocates of what former Vice President Al Gore has perhaps most famously criticized as “the unilateral executive.”  They interpret the constitutional design as creating a largely autonomous executive branch, in which the President enjoys a robust range of inherent authorities, both foreign and domestic, which are beyond the power of Congress to regulate or the authority of the courts to review. If they are right, then we are legally required to have a unilateral presidency, unless the Constitution is to be amended. On the other side are those who might most accurately be called the constitutional pluralists. Pluralists interpret the Checks and Balances system to emphasize the roles that the Constitution assigns to the multiple institu-tions of our national government in holding each other to account. In the pluralist view, the scope of permissible presidential initiative depends very much on the actions of Congress and the courts.  There is, however, a potential disconnect between the debates over con-stitutional theory and the realities of actual government practice. Assume that the presidentialists are right and the President is legally entitled to 28 • Chapter Two exercise unilateral authority over a wide range of domestic and national affairs.

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