Are Our Checks and Balances Broken?

In the United States, we grow up being taught about the virtues of checks and balances, and this great, looming, governmental system designed to keep any one branch from gaining control over the other two. The executive has veto power and can appoint judges, judges can review legislation and develop caselaw, the legislative can override vetoes, pass new laws, and confirm judges. Together, the executive, legislative, and judicial branches are supposed to elegantly counterbalance each other to create a fair, just government where everyone plays an active role and everyone has an opportunity to offer an opinion.

Not for us, the founders said, would there be a dictatorship, or a monarchy. Instead, everyone — except, of course, for slaves, women, and those who didn’t own property — would be able to play an active role in government, and no branch could become too powerful. It sounds like a noble idea, and the structural support for it was built very clearly into the Constitution. But is it working today, or has political polarisation made it functionally impossible for checks and balances to really operate as intended?

The United States is effectively a nation of two political parties. Democrats and Republicans take up the majority of the vote, and they’re the only two parties seriously reported on in most elections and political situations. Electorally, this creates a very imbalanced power struggle, as instead of being distributed over many parties, the vote is locked into one or the other. Outliers aren’t large enough to make a significant difference — the Green Party, for example, can’t get into the Presidential Debates, which makes it functionally impossible to advance its platform and get the attention of the voters.

This means that the executive and legislative branches are, inevitably, dominated by one party or the other. They’re Democratic or Republican, and this creates a sort of loggerheads power struggle that makes it extremely difficult to get anything done. If Congress is Democratic, a Republican President will veto, push, and sabotage to make it impossible for Congress to push anything through. If the executive is a Democrat, a Republican Congress will likewise block attempts at legislative reform and action. This isn’t exactly checks and balances. It’s more like a brutal tug-of-war.

For the judicial branch, this war has real implications, because it makes it extremely difficult to push through balanced, functional judicial nominees. This has critical implications because the judicial branch, unlike Congress and the executive, is for life. Once a Supreme Court justice is appointed, that person stays on the bench until death, impeachment (highly unusual), or retirement. When the judicial branch is caught up in petty political power struggles, everyone suffers, including the system of checks and balances, as illustrated by the endless stream of extremely controversial 5-4 decisions based less on jurisprudence than they are on politics.

Judges are supposed to be impartial, capable of looking at a case and making decisions about it on the basis of the merits of the case, existing caselaw, and foundational documents. If they lack that ability and make decisions on the base of politicised beliefs like whether women should be able to access abortion, that strips the judicial branch of its powers and impartiality, and makes it yet another political tool. When conservative and liberal justices can’t discuss the legal merits of a case because they’re bound up in its political implications, it sets a dangerous precedent.

Are we, then, too polarised to make the checks and balances system work, despite the best intentions of the founders and those who work within the system? Have we made it impossible for the government to counterbalance itself and give all residents of the US an active voice in politics? Are we simply careening from one political extreme to another? These are things that are especially pressing in the runup to midterm elections, which can become a key determining political factor in the shape of Congress over the next two to six years, as Senators and Representatives shuffle in and out of office.

Many members of government seem to have forgotten the role of checks and balances and their importance in US governance. The point of a Presidential veto is not to throw a tanty every time Congress does something you don’t like. The veto override is a fantastic tool for addressing unfair actions on the part of a President, but not for abusing when a President vetoes a truly unjust and unreasonable bill. Blocking judicial nominations to consider other options or refusing nomination to a judge who is unqualified or clearly biased is legitimate, but holding them up for the sake of politics — to hold on in the hopes of a party change at the next election, for example — is repulsive. Using the power of the bench to enforce personal morals is also disgusting.

If the United States cannot bring itself to respect the checks and balances system, to take advantage of the brilliance of a system structured directly into its governance, why should residents trust the government? Why does the government find it so difficult to deal with the idea that multiple political parties should have their day, and that the balance of power between branches should be more equally distributed? As it is now, the government seems to be teetering in heels on a see-saw, wavering wildly and uncertainly in extreme directions. Politics, though, should be more of a graceful waltz, integrating constantly changing partners and seamless steps that contribute to a larger and more elegant whole.

Will it ever be possible for US politics to look like that? Did it ever?

Image: Three’s a…murder, Sheila Sund, Flickr.