How does the Congress use its powers in checking the executive and judiciary branches?

Why does the U.S. Constitution separate the government into three branches? At the nation’s founding, the Constitution’s framers understood that executive, legislative, and judicial responsibilities differed, and they provided for these distinct functions. They also believed that concentrating authority in one body would result in tyranny. They therefore divided the government into legislative, executive, and judicial branches, so that no single part would become too strong, and empowered each to limit or “check” the powers of the others. This exhibit examines Congress’s unique role and the ways in which it can balance or dynamically shape and challenge the powers of other two branches.

Congress and the Judicial Branch: Jurisdiction

The Constitution stipulates that “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may . . . establish,” but leaves the details of organization and authority for Congress to decide through legislation. How large is the Supreme Court and what is its jurisdiction? What kinds of cases must it hear? How many inferior courts are needed? Congress has used its constitutional authority to address these essential questions.

Congress and the Judicial Branch: Composition

The president nominates Supreme Court justices, but the Senate has the sole power to confirm those appointments. The confirmation process has changed over time, but Congress’s capacity to shape the judiciary continues to be an important check on that interpretive body, as does its power to impeach and try members of the federal judiciary for “high crimes and misdemeanors”. These powers have elicited some of the most dramatic moments in congressional history.

Congress and the Judicial Branch: Negotiation

Congress creates laws; the Supreme Court interprets those laws in the context of legal disputes and rules on their constitutionality. Congress can change the courts’ size, structure, and jurisdiction. The two branches have sometimes disagreed on issues, each questioning the actions of the other, but have also found common ground, building on and reinforcing each other’s work. This constitutional dialogue between those who write our laws and those who interpret them is central to the U.S. system of checks and balances.

Congress and the Executive Branch: Nominations and Appointments

This all-important check upon the president’s power gives the Senate influence over the composition of the executive and judicial branches. Although the Senate has confirmed the vast majority of presidential nominations, its consideration of nominees has produced some notable confrontations between the legislature and the chief executive. This advice-and-consent role is one of the most significant constitutional checks on the presidency.

Congress and the Executive Branch: Balancing Power

Congress is the central law-making body to which the executive and judicial branches respond. Congress writes and debates the laws that govern the United States, and it can override presidential vetoes. The Senate’s advice-and-consent power over treaties and both chambers’ important role in amending the Constitution also indicate the legislature’s essential role in the nation’s representative government.

Congress and the Executive Branch: Investigations

The nation’s founders, mindful of human nature and the potentially corrupting effects of power, anticipated congressional oversight of the federal government. In addition to investigating misuse of federal funds and abuses of power, Congress also gathers information needed to create new legislation. The power to investigate is one of Congress’s most important tools for developing effective public policy, conducting oversight, and informing the public.

The Constitutional Structure For Limited And Balanced Government

The Constitution was devised with an ingenious and intricate built-in system of checks and balances to guard the people's liberty against combinations of government power. It structured the Executive, Legislative, and Judiciary separate and wholly independent as to function, but coordinated for proper operation, with safeguards to prevent usurpation of power. Only by balancing each against the other two could freedom be preserved, said John Adams. Another writer of the day summarized clearly the reasons for such checks and balances:

• "If the LEGISLATIVE and JUDICIAL powers are united, the MAKER of the law will also INTERPRET it (constitutionality).
• Should the EXECUTIVE and LEGISLATIVE powers be united... the EXECUTIVE power would make itself absolute, and the government end in tyranny.
• Should the EXECUTIVE and JUDICIAL powers be united, the subject (citizen) would then have no permanent security of his person or property."

"INDEED, the dependence of any of these powers upon either of the others ... has so often been productive of such calamities... that the page of history seems to be one continued tale of human wretchedness." (Theophilus Parsons, ESSEX RESULTS)

What were some of these checks and balances believed so important to individual liberty? Several are listed below:

• HOUSE (peoples representatives) is a check on SENATE - no statute becomes law without its approval.
• SENATE is a check on HOUSE - no statute becomes law without its approval. (Prior to 17th Amendment, SENATE was appointed by State legislatures as a protection for states' rights - another check the Founders provided.)
• EXECUTIVE (President) can restrain both HOUSE and SENATE by using Veto Power.
• LEGISLATIVE (Congress - Senate & House) has a check on EXECUTIVE by being able to pass, with 2/3 majority, a bill over President's veto.
• LEGISLATIVE has a further check on EXECUTIVE through power of discrimination in appropriation of funds for operation of EXECUTIVE.
• EXECUTIVE (President) must have approval of SENATE in filling important posts in EXECUTIVE BRANCH.
• EXECUTIVE (President) must have approval of SENATE before treaties with foreign nations can be effective.
• LEGISLATIVE (Congress) can conduct investigations of EXECUTIVE to see if funds are properly expended and laws enforced.
• EXECUTIVE has a further check on members of LEGISLATIVE (Congress) in using discretionary powers in decisions regarding establishment of military bases, building & improvement of navigable rivers, dams, interstate highways, etc., in districts of those members.
• JUDICIARY is a check on LEGISLATIVE through its authority to review all laws and determine their constitutionality.
• LEGISLATIVE (Congress) has restraining power over JUDICIARY, with con­stitutional authority to restrict extent of its jurisdiction.
• LEGISLATIVE has power to impeach members of JUDICIARY guilty of treason, high crimes, or misdemeanors.
• EXECUTIVE (President) is a check on JUDICIARY by having power to nominate new judges.
• LEGISLATIVE (Senate) is a check on EXECUTIVE and JUDICIARY having power to approve/disapprove nominations of judges.
• LEGISLATIVE is a check on JUDICIARY - having control of appropriations for operation of federal court system.
• LEGISLATIVE (Peoples Representatives) is a check on both EXECUTIVE and JUDICIARY through power to initiate amendments to Constitution subject to approval by 3/4 of the States.
• LEGISLATIVE (Senate) has power to impeach EXECUTIVE (President) with concurrence of 2/3, of members.
• The PEOPLE, through their State representatives, may restrain the power of the federal LEGISLATURE if 3/4 of the States do not ratify proposed Constitu­tional Amendments.
• LEGISLATIVE, by Joint Resolution, can terminate certain powers granted to EXECUTIVE (President) (such as war powers) without his consent.
• It is the PEOPLE who have the final check on both LEGISLATIVE and EX­ECUTIVE when they vote on their Representatives every 2 years, their Senators every 6 years, and their President every 4 years. Through those selections, they also influence the potential makeup of the JUDICIARY.

It is up to each generation to see that the integrity of the Constitutional structure for a free society is maintained by carefully preserving the system of checks and balances essential to limited and balanced government. "To preserve them (is) as necessary as to institute them," said George Washington.

How does Congress check the power of the executive branch?

How does Congress check the judicial branch?

What power is used to check the judiciary by the executive branch?

What are 3 ways Congress and the President can check the judiciary?