Yes, We Really Need Checks and Balances

An_Advertisement_of_The_Federalist_-_Project_Gutenberg_eText_16960John’s Argument:
John S. has two main arguments against checks and balances: 1. They are outdated and no longer consistent with the Founding Fathers’ intentions and 2. They are overrated. The first is easier to respond to than the second since John’s second argument is more based on his personal preferences rather than any sort of logic or historical pattern. Nonetheless, I will respond to both.

Understanding the Meaning of Checks and Balances:
Checks and balances, according to his own cited definition, is a “principle of government under which separate branches are empowered to prevent actions by other branches and are induced to share power.” In other words, checks and balances specifically deals with the interaction among multiple branches of government. The presidential veto and the Senate’s power of impeachment are two typical examples of checks and balances. Checks and balances were designed in order to moderate the excesses of democracy and prevent factions (groups of people united under the same interest adverse to the liberties of other individuals) from exercising influence under a concentration of power.

Much of what John speaks of as being wrong with the healthcare debate is not about checks and balances, properly defined. John claims, “Since the Constitution requires Obama to get the approval of 60 senators for his plan, it limits the ability of one man to exert his will on the American people.” This is untrue. The Constitution requires 51 Senators to approve his plan but later non-Constitutional Senate procedure introduced the filibuster, which required 60 senators to approve a cloture rule to limit debate. But, this modern version of the filibuster and cloture was not passed until 1975, hardly part of the Constitution. The Senate does have much procedure that hampers the timely passage of new laws and regulation. There is also the hold, where any Senator can temporarily secretly prevent a bill from reaching the Senate floor. The hold, the filibuster, and the committee system, though, are separate from checks and balances. Political scientist George Tsebelis uses the term “veto players” to describe individuals who can prevent a bill from becoming a law. What is occurring in John’s examples is that different veto players (including Max Bauchus) are creating gridlock, making it more difficult to pass a bill. This is distinct from checks and balances.

Checks and Balances are Not Outdated:

If anything, checks and balances have become more important due to modern developments.

In Federalist 51, James Madison explains the logic of a two-house Congress, arguing: “In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.” In other words, Congress is not intended to be perfectly representative. Checks and balances are purposely anti-democratic in order to limit the ability of factions to seize power and pass laws. More than anything, Madison was concerned with the federal government’s excess usurpation of power. He thought the federal/national government had its powers limited to what was expressly delineated in the Constitution and the rest of the powers were reserved for state governments. There were many powers that simply should not have been exercised by the federal government even if the people of the time wanted that power to be exercised. It’s misleading to claim checks and balances are intended “to maintain a government ‘of the people’” when their purpose is to temper the elements of the United States’ government that are particularly democratic.

What were Madison and the Founders particularly scared of in terms of concentration of power? The formation of political parties—the ultimate factions. While political scientist John Aldrich has persuasively demonstrated that the formation of a two-party system was inevitable given the institutions of the U.S., this certainly was not seen as an inevitable development by the Founders. Given the development of political parties and the Founders’ intentions, though, checks and balances are more important, not less. It is not uncommon that one political party controls the majority in the House and Senate. How do we prevent that party from abusing their power? We have a President with a veto who can force a 2/3 vote in the Senate, federal courts vested with the power to rule laws unconstitutional (admittedly, this was not part of the Constitution but was part of the Federalist Papers), and, of course, the numerous procedural developments post-Constitution in the House and the Senate that add extra veto players that can prevent a bill from becoming a law.

Of course, there is legitimate debate where those veto players ought to lie. For instance, I think it would be more desirable for the federal courts to be a more significant veto player than Congressional Committee Chairmen because I prefer their decision-making process to that of members of Congress. So, while I agree with John that certain veto players are playing too large of a role, his conclusion that checks and balances are outdated strikes me as wrong.

Checks and Balances are Substantively Good

The statement “Checks and balances are overrated” may be valid, but I don’t really know how to measure that. Yes, “checks and balances” are always bolded in U.S. history textbooks, with an implicit big yellow smiley face. But, does the popular conception of checks and balances match this conception among academic historians? I think most people probably give lip-service to checks and balances, but, in the end, like John, want their government to get things done. Admittedly, this is a lot of conjecture, so the rest of this section will focus on why checks and balances are a good thing, not on whether they are over- or underrated.

Referring to Max Baucus, John claims “And yet somehow a senator elected with fewer than 350,000 votes largely determines the healthcare system of a nation of 300 million citizens.” Baucus, as I said earlier, is a veto player. In certain situations where bills go before his committee he can play a big role in ensuring that a bill does not become a law. Yet, as John admits, you need 60 Senators to agree on a bill before it becomes a law (if there is a threat of filibuster), so it’s pretty misleading to say that he “largely determines” the U.S. healthcare system. And, the fact is that Baucus is not even really the one who prevented the public option from passing. It was a group of fiscally conservative Democrats that played the biggest role in derailing the public option, preventing the Senate from reaching 60 Senators to approve the plan.

Do I think this is obviously a bad thing, an indicator that the US federal government can’t get anything done? Not really. I don’t think the purpose of the federal government is to get things done. The purpose of the federal government does involve some provision, but much of its purpose is to protect our liberties. The result is that our institutions were designed to lead to a lengthy process before a bill becomes a law. Healthcare reform is now part of this process. If you wanted the public option, its failure may disappoint you. But, keep in mind that there were plenty of other bills that failed in the past whose failure would have pleased you. Checks and balances (and veto players) benefit different parties and different interests at different times. In the long run, they work to prevent bills from hastily passing and power from concentrating. Checks and balances are admittedly imperfect. Sometimes, bills still get hastily passed (See: USA PATRIOT Act and the Emergency Economic Stabilization Act of 2008) especially under the guise of crisis. But, without checks and balances we would have far more examples to list under this category.

Now, I want to respond to a couple of John’s more specific arguments about the presidency. “The fact that Obama was elected by nearly 70 million Americans, with votes in all 50 states, indicates that his plan is actually more aligned with the wishes of the American populace than Baucus’ (I understand this may not be technically accurate, but it’s kind of a key assumption of democracy).” There are two problems with this argument. First, the United States is not a democracy, it is a constitutional republic, and therefore key assumptions of democracy (whatever those are, since John does not elaborate on them) do not necessarily apply to the United States federal government as a whole. Second, Obama had six or seven (or maybe even more) key issues when he ran for re-election. According to an August 2008 poll, the economy, energy, healthcare, education, Iraq, terrorism, and moral values were all listed by more than 60 percent of registered voters as “very important” to their vote. The Economy and Energy finished ahead of Healthcare. So, to say that Obama’s view on healthcare reflected the American view on healthcare may be correct, but probably is not (This isn’t even considering the fact that most Americans didn’t even know what Obama’s healthcare proposal was when they voted for him).

John also claims, “While it may seem counterintuitive, the process of getting 60 senators to agree on something is actually less responsive to voters than getting 1 president.” The implication of this claim is that the President is more representative of the people than Congress. First, I still don’t get why the standard we’re applying is democracy. John isn’t a big fan of democracy and neither were the Founders. Because of the way the electoral college has been altered throughout history, it turns out that the President is a more directly elected than he was at the time of the Founding, but John provides little argument for why a more representative group or individual is more desirable than a less representative group or individual. Furthermore, tons of research in Political Science (e.g. the research that established the bureaucratic politics model) has demonstrated that the Executive Branch is full of inefficiencies, power struggles standard operating procedures, and other factors that subvert the will of the people. Not to mention that the President has little accountability to the people during his second term. Thus, even if you buy John’s argument that a more representative branch is better suited to influence legislation, it’s not entirely clear that the President is more representative.

Moreover, it is not the main role of the President to make policy. When I voted this past election, foreign policy was the most significant voting issue for me, since this is an area where the President can and does exert a disproportionate amount of influence based on tradition and constitutional procedure. The fact is, on many other issues, the President may initiate legislation or work with members of Congress, but he is not intended to be the focal point of the passage of legislation. John gives little to no reason why he should be either.

In the end, then, checks and balances are important and awesome. Anyone want to veto this perspective?

2 responses to this post.

  1. Posted by John S on August 20, 2009 at 5:00 PM

    Yeah, I probably (read: certainly) overreached in my initial argument, but the main idea I was trying to get at was the fact that the current set-up (which, as you point out, has to do with a lot of things external to the Constitution) often makes it easier, and not harder, for certain pressure points to be manipulated in the system.

    As I’ve tried to make clear, I don’t really care either way about health care, nor do I like democracy one bit, but I think what’s going on right now does illustrate how a lot the current set-ups and “veto players” lead to less than optimal outcomes. Again, though, this often has little to do with the actual issue of checks and balances.

    Also, I should say that I’m a big fan of gridlock overall, which checks and balances generally work in favor of, but it’s a little glib to point to the USA Patriot Act and last year’s bailout as “slight imperfections.” Those are huge failures, and saying there would be even MORE without checks and balances may be true, but it’s a low standard. (It’s also unfalsifiable, like saying more Iraqis would have died if we hadn’t invaded in 2003.) Checks and balances occasionally work to prevent rash decisions, but they are very easily circumvented and exploited, often for negative outcomes.

    Reply

  2. Posted by David Marshall on December 14, 2009 at 11:22 AM

    For those that serve a Pledge of Allegiance’s, “with liberty and justice for all” checks and balances?

    The U.S. Executive Branch’s perpetuation of the 1950 U.S. Supreme Court’s Feres Doctrine as a policy [1] = The in 2010 continuation of the 1994 U.S. Senate’s stated Department of Defense (DOD) injuring experiments on “hundreds of thousands” [7] of those that serve!

    In 1994 the U.S. General Accounting Office (GAO) and U.S. Senate identified the under the cover of war DOD human experiments; [3] & [7]. They have been approved by the Legislative Branch’s 59 years of Feres inaction. This is verified by their making certain that these acts can not be addressed by an inferior Legislative Court of Veterans Appeals (COVA) or by any superior U.S. Judicial Branch Court; [4], [5] & [6]! Please hold your members in the U.S. House and Senate accountable. Thank you.
    David H. Marshall

    OUTLINE:
    Despite the efforts of some, in 2009 it is fifteen (15) of fifty nine (59) years later without the U.S. Congress’s then known violations corrected. REFERENCES [1] thru [8]: In 1950 the U.S. Supreme Court Feres Doctrine holds the federal government harmless for injuries to military personnel.[1] The 1953 Secretary of the DOD issued a for 22 years Top Secret, no non-consensual military human experiments memo.[2] Coincidentally, it was declassified the year following Congress’s 1974 Privacy Act that censored out the names of all co-guinea pigs that survived the 1973 National Personnel Records Center fire. In Sept. 1994 there was the GAO “Human Experimentation” “Testimony” on order disobeyed injuries to U.S. Military personnel.[3] In Oct. 1994 the Chief Judge of Congress’s 1988 established inferior COVA stated that the, “Constitution, statutes and regulations” are “policy freely ignored” by both the Secretary of the Department of Veterans Affairs (DVA) and “The Veterans Health Administration” (VHA). Also there is the, “The” Veterans Appeals “court may not review the schedule of ratings for disabilities or the policies underlying the schedule.”, e.g., DOD human experimentation issues.[4] That is the herein “STATE OF COURT” transcript PARAGRAPH 9 with Congress’s law of the land, no allowed Court review U.S. CODE, TITLE 38, SECTIONS (§) 511 and § 7252. Decisions of the Secretary; finality; [5] & [6]. Then the 54 page Dec. 94 U.S. Senate’s “hundreds of thousands” of military guinea pigs acknowledgment plus its still ignored, “The Feres Doctrine should not be applied for military personnel who are harmed by inappropriate human experimentation when informed consent has not been given.”[7]
    The DOD Secretary’s NO non-consensual, human experiment’s means an after order disobeyed dereliction of duty demonstrated by the GAO and U.S. Senate in [3] & [7]! In 1988 the U.S. Congress’s Veteran’s Judicial Review Act created COVA. This is a U.S. Congressional no teeth inferior LEGISLATIVE, NOT a Judicial Branch Court. It can not hold the DOD & DVA responsible for the underlying facts of a case. Its Chief Judge describes veterans captured within an out of control, DVA health care process. Lost is a prior to military service right to a facts of the case reviewing and precedence setting, superior Judicial Branch Court. All veterans are captured within the “freely ignored” “Constitution, statutes and regulations” Executive Branch. To date the DOD Secretary’s disobeyed order, the GAO, Veterans Court Chief Judge, U.S. Senate and the Pledge of Allegiance violations have not been corrected! Now gone for both active U.S. Service Personnel and U.S. Veterans are the check and balances between our branches of government, i.e., the Legislative (U.S. House and Senate), the Executive (e.g., DOD and DVA) and the Judicial. In 2006 under the “Pandemic All-Hazards Preparedness Act” the Biomedical Advanced Research and Development Authority (BARDA) was established.[8] Under its wartime “national security missions” is an in the foot steps follow on to the DOD injuring biomedical research documented by the GAO and U.S. Senate.[3] & [7]?
    A couple of examples of the “initial adjudicators” to date “freely ignored” are this veterans 1957 DVA Physician’s resultant USAF Physician’s, “MPerR PERMANENT” “SURGEON HQ ARRC JUN 25 ‘58 MEDICALLY DISQUALIFIED FOR MILITARY SERVICE”! Then the layman adjudicator’s brainless 6/27/96 Supplemental Statement Of the Case (SSOC) no “…competent medical evidence…”. After an ongoing 18 years in the DVA administrative process the veteran receives a 100%disability. To date there is still no recognition of their 1957 DVA physician’s in 1952-1956 service resultant 1958 USAF physician “disqualified”!
    REFERENCES (Emphasis added throughout) with comments:
    [1] The U.S. Supreme Court decided in 1950, in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152, that the federal government could not be held liable under the statute known as the Federal Tort Claims Act (28 U.S.C.A. Sections 1291, 1346(b), ©, 1402(b), 2401(b), 2402, 2671-80) for injuries to members of the armed forces arising from activities incident to military service. A doctrine that bars claims against the federal by members of the armed forces and their families for injuries arising from or in the course of activities incident to military service. Source: “http://legal-dictionary.thefreedictionary.com/Feres+Doctrine
    [2] 26 February 1953, DOD Secretary’s NO non-consensual, human experiment’s Memo. Pages 343-345 of “The Nazi Doctors and the Nuremberg Code; Human Rights in Human Experimentation” by George J. Annas and Michael A. Grodin. (Oxford University Press, 1992).
    [3] September 28, 1994 GAO Military “Human Experimentation” “Testimony”. GAO/T-NSIAD-94-266
    [4] “STATE OF COURT, CHIEF JUDGE FRANK Q. NEBEKER, STATE OF THE COURT, FOR PRESENTATION TO THE UNITED STATES COURT OF VETERANS APPEALS THIRD JUDICIAL CONFERENCE, OCTOBER 17-18, 1994 {as it appears in Veterans Appeals Reporter}”
    ——————–PARAGRAPH 9 of 16 in “STATE OF COURT” TRANSCRIPT records DVA laymen ignoring medical opinion without veteran recourse.—————————–
    “I believe my message is clear. There is, I suggest, no system with judicial review which has within it a component part free to function in its own way, in its own time and with one message to those it disappoints — take an appeal. That is, I am afraid, what we have today in many of the Department’s Agencies of Original Jurisdiction — that is AOJs — around the country. Neither the Court, through the Board, the Board, nor the General Counsel has direct and meaningful control over the Agencies of Original Jurisdiction. Indeed, it is also clear that the VHA — the Veterans Health Administration — ignores specific directives to provide medical opinions as directed. And this is resulting in unconscionable delays. Let us examine judicial review. Remember, the Court and the Board do not make policy, the Secretary and Congress do. The Court simply identifies error made below by a failure to adhere, in individual cases, to the Constitution, statutes, and regulations which themselves reflect policy — policy freely ignored by many initial adjudicators whose attitude is, “I haven’t been told by my boss to change. If you don’t like it — appeal it.” The complete 16 paragraph “STATE OF COURT” transcript is available on request. Previously at, and now missing from the Chief Judges and state_of_court sites: http://www.goodnet.com/~heads/nebeker & http://www.firebase.net/state_of_court_brief.htm The legal-dictionary source “http://legal-dictionary.thefreedictionary.com/federal+court”Federal Courts notes in part: “The court may not review the schedule of ratings for disabilities or the policies underlying the schedule.”
    The top medically ignorant “boss” is Congress’s confirmed “Secretary” of the DVA.
    AND THE CONGRESS’S “policy freely ignored” UNITED STATES CODE law of the land, take away from Veterans:
    [5] UNITED STATES CODE, TITLE 38 > PART I > CHAPTER 5 > SUBCHAPTER I > § 511. Decisions of the Secretary; finality
    http://www.law.cornell.edu/uscode/html/usc…11—-000-.html
    “(a) The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), THE DECISION OF THE SECRETARY AS TO ANY SUCH QUESTION SHALL BE FINAL AND CONCLUSIVE AND MAY NOT BE REVIEWED BY ANY OTHER OFFICIAL OR BY ANY COURT, whether by an action in the nature of mandamus or otherwise.”
    THEREFORE, NO COURT REVIEW OF THE MEDICALLY UNTRAINED DVA laymen and “Secretary” “schedule of ratings for disabilities” decisions as proven by:
    [6] UNITED STATES CODE, TITLE 38 PART V > CHAPTER 72 > SUBCHAPTER I > § 7252. Jurisdiction; finality of decisions
    “(b) Review in the Court shall be on the record of proceedings before the Secretary and the Board. The extent of the review shall be limited to the scope provided in section 7261 of this title. THE COURT MAY NOT REVIEW THE SCHEDULE OF RATINGS FOR DISABILITIES adopted under section 1155 of this title or any action of the Secretary in adopting or revising that schedule.”
    [7] December 8, 1994 REPORT 103-97 “Is Military Research Hazardous to Veterans’ Health? Lessons Spanning Half a Century.” Hearings Before the U.S. Senate Committee on Veterans’ Affairs, 103rd Congress 2nd Session. With NOTES 1 to 170.
    [8] 2006 – Under Public Law (P.L.) 109-417 the “Pandemic All-Hazards Preparedness Act. 42 USC 201” established was the Biomedical Advanced Research and Development Authority (BARDA). Signed into law 16 December 2006. SOURCE: http://www.hhs.gov/aspr/omsph/nbsb/publiclaw109417.pdf

    Reply

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