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Effectiveness of Checks and Balances in the United States.

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I focus on how James Madison's ideal of checks and balances is reflected in the U.S. Constitution, and a brief overview on the effectiveness in this system in the U.S. I explain President Trump's travel ban as an example of a failure yet a
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   Federalist No. 51- Its Relationship with the U.S. Constitution and the Effectiveness of Checks and Balances in the United States Government. In May of 1788, James Madison in Federalist 51 sought to envision a system of governance in which power was ultimately vested in the people and self-limiting in its propensity for tyranny. Such ideas were formalised into law in 1789 with the ratification of the U.S. Constitution in June of 1788, which places strong importance on the ideas of separation of powers and checks and balances. In this essay, I will first describe MadisonÕs envisioning of a separation of powers. I will then continue to outline how this system is designed, as per the U.S. Constitution. Finally, I will discuss separation of powers in action, and conclude that MadisonÕs predictions have for the most part been upheld, however there are significant challenges in the turbulent legal relationship between the Executive and Judicial branches, particularly in recent times. James Madison ultimately sought to prevent a concentration within government of several significant powers in the same department 1 . The optimal way of combatting such a challenge, as described by Madison, was to have Òa government which is to be administered by men over menÓ, and enabling Òthe government to control the governedÓ 2 . This involves equipping the heads of government branches with the means to resist encroachment from other branches, which is provided in the form of the U.S. Constitution. Madison explains that a separation of powers holds significant importance in government, as he describes government itself as a reflection of human nature; self-interested. As such, the consequence of a system which did not have such checks and balances were potentially oligarchies, dictatorships, and generally tyrannical governments that had little interest in the people it was supposed to represent. Articles I, II and III of the U.S. Constitution set out the three differing branches and their roles 3 . The Legislative branch, consisting of the House of Representatives and the Senate, has the primary purpose of srcinating, debating and voting on legislature. The Executive branch, headed by the President, is responsible for implementing and enforcing legislature that has been passed by congress, appoints the head of federal agencies, selects members for the cabinet and conducts diplomacy. The third branch, the Judiciary, is headed by the Supreme Court which is required to uphold the enforcement of the Constitution, adjudicate issues pertaining to the Federal Government and conflict between U.S. states. It is evident that each branch is enabled with considerable and theoretically balanced power. More importantly, in the context of Federalist 51, is how each branch is enabled with the power to resist encroachment, limit other branches and ultimately form an effective, balanced 1  Volokh, Eugene. ÒÔWhat Is Government Itself, but the Greatest of All Reflections of Human Nature?ÕÓ Washington  Post  , April 20, 2015, sec. The Volokh Conspiracy. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/20/what-is-government-itself-but-the-greatest-of-all-reflections-of-human-nature/. 2  ÒThe Avalon Project ! : Federalist No 51.Ó Accessed March 24, 2018. http://avalon.law.yale.edu/18th_century/fed51.asp. 3  Philadelphia Convention. ÒThe Constitution of the United States of America.Ó National Archives, 17SEP1787.  government. I will first describe the role of the Legislature branch in ensuring a balance of power. In terms of checks and balances, the Legislative branch (Congress) has a significant role in enforcing proper conduct of the other two branches, in order to ensure the government as a whole is acting in the best interest of the people. The House of Representatives is equipped with the Òsole power of impeachmentÓ 4 , while the Senate has Òthe sole power to try all impeachmentsÓ for the ÒPresident, Vice President and Civil OfficersÓ (which includes  judges) 5 . Furthermore, Congress is able to override a Presidential veto with a two-thirds supermajority vote 6 , and the President cannot appoint federal judges, ambassadors and counsels without the Òadvice and consentÓ of the Senate 7 . Notably, the Legislative branch is bicameral, meaning Congress is self-checking as bills must be passed by both legislative houses before being enacted. This is significant as without bicameralism, the Legislative branch as a single entity would evidently yield dangerously exceeding power over the Executive and the Judicial branches 8 . The executive branch is equipped with the ability to veto decisions made by Congress (however, as aforementioned, this veto may be countered by a supermajority vote), and may call Congress into emergency sessions 9 . The President also appoints federal judges, and is able to grant pardons for crimes other than impeachment 10 . The executive branch also possesses a limited degree of self-checking as set out by 25 th  Amendment Section IV 11 , which has gained significant publicity following the election of President Trump. If the Vice President and 13 members of the 25-seat cabinet vote that the President is Òunable to discharge the powers and duties of his officeÓ, then the Vice President shall become President. However, John Feerick, Dean of Fordham Law School, stated that such a decision depends on Òreliable facts regarding the PresidentÕs physical or mental facultiesÓ 12 . As such, the executive branch possesses considerable checking power, however a severely limited self-checking capability. 4 4 U.S. Const. art 1. ¤ 2.   "   #$%$ &'()*$ +,* - . ¤ 3. .   #$%$ &'()*$ +,* - . ¤ 7. /   #$%$ &'()*$ +,* 0 . ¤ 2.   8   Wawro, Gregory J., and Eric Schickler.  Filibuster: Obstruction and Lawmaking in the U.S. Senate . Princeton,  NJ: Princeton University Press, 2007.   1   #$%$ &'()*$ +,* 0 . ¤ 3.   -2   #$%$ &'()*$ +,* 3 .   --   #$%$ &'()*$ +4 0"$ ¤ 4.   12   Harrington, Rebecca. ÒTrump Reportedly DidnÕt Know about the Loophole in the 25th Amendment That Lets 14 People Remove a Sitting President from Office.Ó Business Insider Australia, January 9, 2017. https://www.businessinsider.com.au/25th-amendment-how-can-you-remove-president-from-office-2017-3.   The Judiciary branchÕs primary instrument of checking upon other branches is through  judicial reviews. Judicial reviews, although not explicit in the Constitution, is Òthe ability of the Court to declare a Legislative or Executive act in violation of the constitutionÓ 13 , and was established doctrinally in 1803. Measures such as having tenure that is only limited by death, resignation, retirement or impeachment means that judges in the federal courts cannot simply be disposed of and replaced by Presidents who disagree with them 14 . In the same section, the ÔCompensation ClauseÕ prevents Congress from reducing the salaries of federal judges as a measure of reducing the power Congress may yield over the Judiciary branch. The topic of Judiciary review, particularly when focused upon the Executive branch, is central in the next part of this essay where I shall discuss the recent use of such reviews on executive orders. Executive orders are legal directives handed down to federal agencies from the President, and although not explicit in the Constitution, it is implied in Article 1 Section 3 15 . Such laws do not require Congressional approval, how legislators may choose to not allocate the funding required for such directives, and may overturn the order with a supermajority (however this is an exceedingly unlikely event due to political pressure on legislators) 16 . Alternatively, the federal judiciary may deem it unconstitutional. In summary, the process to invalidate such an order is firstly for a case to be filed with a district court, then appealed to a U.S. Court of Appeals who may decide on a ruling, and if not the case may be appealed to the U.S. Supreme Court 17 . Such cases have not been entirely unusual in U.S. history and are evidence of the Judiciary branch ÔcheckingÕ the Executive branch. President Donald TrumpÕs executive-ordered travel bans in 2017 are examples where the checking power of the Judiciary branch has both succeeded and failed. The President signed Executive Order 13769 on January 27 th , which reduced the number of refugees admitted annually from 110,000 to 50,000, suspended Syrian refugee intake indefinitely, and directed the Secretary of Homeland Security alongside the Security of State to restrict the entry of individuals from seven Muslim-majority countries for a minimum of 90 days (to be followed by a further review from the two departments) 18 . Approximately 50 cases were filed in district courts in opposition to the travel ban by January 31, resulting in a nationwide 13   ÒAbout the Supreme Court.Ó United States Courts. Accessed March 29, 2018. http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about.   -5   #$%$ &'()*$ +,* 3 . ¤ 1.   -"   #$%$ &'()*$ +,* - . ¤ 3.   16   G Calabresi, Steven, Mark E Berghausen, and Skylar Albertson. The Rise and Fall of the Separation of  Powers . Vol. 106, 2012.   17   ÒIntroduction To The Federal Court System | USAO | Department of Justice.Ó Accessed March 29, 2018. https://www.justice.gov/usao/justice-101/federal-courts. 18   The White House. Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States, Pub. L. No. EO13769 (2017). https://www.whitehouse.gov/presidential-actions/executive-order-protecting-nation-foreign-terrorist-entry-united-states/.  temporary restraining order against the executive order 19 . This decision was based on statutory challenges regarding the Immigration and Nationality Act, as well as constitutional challenges regarding violation of the right to procedural due process 20 , and the Equal Protection Clause 21 .As a result, when the Trump administration was denied an appeal to the U.S. Court of Appeals for the Ninth District on February 9. On March 6, Executive Order 13780 effectively revoked and replaced executive order 13769, with the only notable difference being that previously issued visas would be valid 22 . The following day, the State of Hawaii challenged the executive order with civil action, claiming it was a ÔMuslim banÕ and citing several violations of the Fifth Amendment, the Immigration and Nationality Act, Religious Freedom Restoration Act and the Administrative Procedure Act 23 . As such, a temporary restraining order was issued against the travel ban. As a third revision of the travel ban, President Trump signed Presidential Proclamation 9645 on September 24, which restricted visitors from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia 24 . Again, this was met with temporary restraining orders, however the Supreme Court ordered in December for the proclamation to take effect 25 . The travel ban outlined in the September Proclamation remains in effect. The conflict between the Judiciary and Executive branches regarding the travel ban is significant in demonstrating the ability of the courts in preventing unconstitutional actions being enacted the President. This is particularly important in contemporary U.S. politics, where the role of President is hyper-politicized and pushing an extremely divisive policy agenda, which is regarded by many as tyrannical 26 . Although the courts system was unable to entirely prevent the travel ban from occurring, it was successful in Ôwatering-downÕ the proposed law from being quite explicitly a ÔMuslim banÕ to being an arguably acceptable immigration policy (in terms of national security). However, former U.S. Attorney General Edward Levi claimed that Ò[The Framers] did not envision a government in which each branch seeks out confrontation; they hoped the system of checks and balances would achieve 19   ÒCivil Rights Litigation Clearinghouse.Ó Accessed March 27, 2018. https://www.clearinghouse.net/results.php?searchSpecialCollection=44.   02   #$%$ &'()*$ +4 "$ 0-   #$%$ &'()*$ +4 "$ 22   The White House. Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States, Pub. L. No. EO 13780 (2017). https://www.whitehouse.gov/presidential-actions/executive-order- protecting-nation-foreign-terrorist-entry-united-states-2/. 23   Wamsley, Laurel. ÒHawaii Mounts Legal Challenge To PresidentÕs Revised Travel Ban.Ó NPR.org. Accessed March 29, 2018. https://www.npr.org/sections/thetwo-way/2017/03/08/519263084/hawaii-will-mount-legal-challenge-to-presidents-revised-travel-ban.   24   Trump, Donald John. ÒProclamation 9645,Ó n.d. Wikisource. 25  ÒSupreme Court Order 583,Ó December 4, 2017. 26  Inc, Gallup. ÒPresidential Approval Ratings -- Donald Trump.Ó Gallup.com. Accessed March 26, 2018. http://news.gallup.com/poll/203198/presidential-approval-ratings-donald-trump.aspx.  harmony of purposes differently fulfilledÓ 27 . It is evident that this has not been the case, as recently the Judicial branch (at least at a lower level) has actively sought confrontation with the Executive, as a result of TrumpÕs Òaggressive presidentialismÓ 28 . However, in the long run, the system of checks and balances has worked. Former U.S. District Judge Ann Aiken highlighted that ÒFor over 200 years, this Nation has adhered to the rule of Law, with unparalleled successÓ 29 . In conclusion, although MadisonÕs envisioned system of checks and balances has worked in ensuring a functioning democracy, preventing encroachment from other branches, and restricting the potential for tyranny, it has not worked to the extent that the Framers hoped. Braches of the federal government, particularly during Donald TrumpÕs tenure, have sought confrontation with one and other. Therefore, the system of checks and balances in the U.S. has evidently worked to a significant extent, however turbulent. The government is evidently a reflection of human nature, as Madison believed. Words: 1708 27  Levi, Edward H.  Restoring Justice: The Speeches of Attorney General Edward H. Levi . University of Chicago Press, 2013. 28    MadisonÕs Nightmare . Accessed March 28, 2018. http://www.press.uchicago.edu/ucp/books/book/chicago/M/bo5981027.html. 29   Keller, Susan Jo. ÒJudge Rules Provisions in Patriot Act to Be Illegal.Ó The New York Times , September 27, 2007, sec. Washington. https://www.nytimes.com/2007/09/27/washington/27patriot.html.

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Apr 28, 2018
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