Separation of Powers & Checks and Balances

(a) Declare war — Legislative (Congress, Article I, Section 8).

(b) Command the military — Executive (President as Commander-in-Chief, Article II, Section 2).

(c) Interpret the Constitution — Judicial (Supreme Court, established by Marbury v. Madison under Article III).

(d) Confirm federal judges — Legislative (Senate, by majority vote — Article II, Section 2).

(e) Issue pardons — Executive (President, for federal offenses, Article II, Section 2).

Note (a) and (b) together illustrate the deliberate split of war powers between Congress (declare) and President (command).

Congress can override a presidential veto with a two-thirds (2/3) vote in BOTH the House and the Senate. The rule is in Article I, Section 7 (the "Presentment Clause"), which describes how a bill becomes a law and what happens if the President vetoes it. Overrides are rare in practice because mustering 2/3 supermajorities in both chambers requires substantial bipartisan support.

Madison argued that, given human nature, you cannot rely on virtuous leaders to refrain from accumulating power. Instead, government must be DESIGNED so that the self-interest of officeholders works AGAINST tyranny rather than for it. Each branch must be given both the constitutional means AND a personal incentive to resist encroachment by the others — "ambition must be made to counteract ambition."

This is achieved by giving each branch:

1. Constitutional independence (separate sources of authority — popular election for House, indirect for Senate originally, electors for President, lifetime tenure for judges).
2. Constitutional weapons to defend itself (veto, override, confirmation, impeachment, judicial review).

Madison famously wrote, "If men were angels, no government would be necessary." Because they are not, government must be structured so that ambition checks ambition. Combined with federalism, this gives the people a "double security" against tyranny — internal separation among federal branches AND vertical separation between federal and state governments.

Congressional checks on the executive (any three):

1. Override veto with 2/3 of both houses.
2. Impeach and remove the President or other federal officers (House impeaches by majority; Senate removes by 2/3).
3. Confirm or reject presidential nominees (Senate, simple majority for most offices, including federal judges and Cabinet secretaries).
4. Ratify or reject treaties (Senate, 2/3).
5. Power of the purse — refuse to fund executive priorities; condition funding on policy compliance.
6. Investigation/oversight — congressional hearings can compel testimony and documents.
7. Declare war — formal authorization for prolonged military conflict.

Judicial check on Congress:

• Judicial review — courts may strike down statutes that violate the Constitution. Established in Marbury v. Madison (1803). The Court has used this power to invalidate many federal laws over time, ranging from Reconstruction-era civil rights acts to the Gun-Free School Zones Act in Lopez.

(a) Concern: Unilateral executive action shifts lawmaking out of the constitutionally designated legislature and into a single elected official. This risks undermining separation of powers — the President, by design, was not supposed to "make law" but to "take care that the laws be faithfully executed" (Article II, Section 3). Sustained executive unilateralism can drift toward the very concentrated power Madison warned against in Federalist 51.

(b) Two checks:

1. Judicial review — courts can strike down executive orders that exceed statutory or constitutional authority. Youngstown Sheet & Tube v. Sawyer (1952) struck down Truman's seizure of steel mills as beyond presidential power without congressional authorization. Justice Jackson's tripartite framework (categories of presidential power) is still the standard analytical tool.
2. Congressional repeal or refusal to fund — Congress can pass legislation overriding an executive order (subject to veto and override) or simply refuse to appropriate funds for the order's implementation.

(c) Why these checks are hard to use:

• Litigation is slow and uncertain; even successful challenges may take years.
• Repealing an executive order requires passing legislation through both houses AND surviving a veto, requiring 2/3 majorities — usually impossible when partisan control is unified or evenly split.
• Defunding requires assembling political coalitions; the executive can often shift money administratively or argue obligations require continued spending.
• Public attention is fragmented; voters often don't reward Congress for technical institutional fights.

The result: presidential unilateralism tends to grow over time as Congress's capacity to police it lags behind.