Every other Tuesday, Civics 101 hosts, Hannah McCarthy and Nick Capodice, join NHPR’s All Things Considered host Julia Furukawa to talk about how our democratic institutions actually work.
This week, Hannah and Julia discuss checks and balances, whether the system operates the way it’s intended to, and maybe, if one branch of U.S. government has more power than the others.
You can listen to Civics 101 here, or wherever you get your podcasts.
Transcript:
Hannah, before we dive into it, let’s go over the checks and balances the government has.
So [the] basic principle here [is] when the government was established, the idea was: we don't want a king, we don't want one person holding all of the power. So we're going to have three branches of government, and we're going to make sure that those branches of government work together and stop one another from exercising too much power.
So when we talk about checks and balances, let's start with Congress, right? Congress can try to create a law, but the executive can say ‘Nope, I'm going to veto this, I know what's best.’ Congress can then override that veto and say ‘No, we know what's best.’ And no matter what, the judiciary can determine that that law is unconstitutional and it has to go off the books.
The Executive — the president — can take all sorts of actions in the course of supporting and defending the Constitution per the oath of office. But Congress can pass laws that make those actions illegal, or conduct investigations and even impeachment hearings if they decide that they want to remove that executive from office.
The judicial branch can also say to the president, ‘Hey, that's unconstitutional, you can't do that.’ Now, the judicial branch is a little bit different. The Supreme Court is the final arbiter of the law of the land — we'll get into that in a little bit — but it's the executive who nominates who gets to be in those powerful positions and it's Congress who confirms those nominations. Congress can also decide to impeach a Supreme Court judge.
So those are really the basic checks, but things can get a little murky.
Let’s talk about that. Does one of the branches have more power over the others? A little bit of murkiness there. Is the system actually working?
This is a great question. Given what I've just told you, Julia, you might have noticed that the court is mostly checked in the form of deciding which individuals actually get to be on it. When the Supreme Court was established, it was really not nearly as powerful as it later made itself. In 1803, the Supreme Court gave itself the all important power in the case Marbury v. Madison. That is the power that we associate today with the court to review laws and determine whether or not they are constitutional. This is called judicial review, the final stop for the law.
The rest of the federal judiciary, all of the circuit and appellate and state supreme courts in the U.S., they are the ones ruling on the big questions before things ever get to the Supreme Court. So you could argue that indeed the judicial branch is technically the most powerful.
Now, Julia, you also asked, is the system working? I say the system works okay. It has sustained itself for over 200 years, but it works when the checks and balances are employed in good faith. And that does not mean that checks and balances are always employed.
Can we, we the people, do anything to check the supreme court?
The truth I always come back to is that we do have the power to vote for the people who put people in power in the judicial branch. We can also petition them. We can say ‘you got to listen to us or we're going to vote you out.’ We can also attempt to bring cases before various federal courts.
Make no mistake, each and every branch, including the ostensibly apolitical Supreme Court, comprises human beings who are not immune to political leanings and political will. And those super powerful people in all of those branches, they tend to really like to stay in power and to want to hold on to it for dear life. We are the ones who can say, at least to Congress and the executive, ‘We don't want you to have that power anymore.’ Just know this, the branches are listening to us, so we should speak up using our own version of checks.
