Constitutional Framework (AQA A-Level Politics): Revision Notes

Framework of Government

The US Constitution establishes two fundamental principles that shape how the American government operates: the separation of powers and checks and balances. The framers of the Constitution designed these principles to limit government power and distribute authority across different branches, ensuring that no single institution could accumulate excessive power. Each branch possesses both unique powers and the ability to constrain the others.

Separation of powers

The Founding Fathers drew inspiration from the French political philosopher Montesquieu, whose 1748 work De L'Esprit des Loix ('The Spirit of the Laws') argued that dividing government into distinct branches was the most effective safeguard against tyranny and absolutism.

The Constitution therefore establishes three separate branches:

• Legislature (Congress) - responsible for making laws
• Executive (Presidency) - responsible for implementing and enforcing laws
• Judiciary (Supreme Court) - responsible for interpreting laws

Each branch is addressed in separate articles of the Constitution, which define their structure and powers. This principle influences not only the constitutional framework but also how each branch functions in practice. However, the separation is not as absolute as it might initially appear.

How significant is the separation of powers?

The importance and effectiveness of the separation of powers in the US Constitution remains a subject of debate:

Very significant	Less significant
Each branch faces clear limits imposed by the other two.	The term 'separation' can be misleading - 'shared powers' may be more accurate. Both president and Congress, for example, have roles in lawmaking.
No person can serve simultaneously in Congress and the executive. When appointed secretary of state, Hillary Clinton resigned as senator for New York. Similarly, Deb Haaland resigned as a New Mexico congresswoman when Biden nominated her as interior secretary in 2020.	The vice president serves as both an executive officer and senate president (legislature), with a casting vote in tied situations. Mike Pence used this power several times, including to confirm Betsy DeVos as education secretary (2017) and Jonathan Kobes to the Court of Appeals for the Eighth Circuit (2018). With the 50/50 party split after the 2020 election, Vice President Harris likely faces similar situations.
It prevents any one branch from becoming too powerful and avoids an 'elective dictatorship' - a concern sometimes raised about UK prime ministers. Presidents must work with Congress to pass legislation and ensure constitutional compliance.	A president with a supportive Supreme Court and whose party controls Congress can wield substantial power.
It helps preserve an independent, non-political judiciary, which is vital for defending civil liberties and entrenched rights.	Few modern democratic judiciaries are as politicised as the US judiciary. Politicians' involvement in nomination and confirmation processes, combined with the Supreme Court's considerable political power, inevitably reduces judicial independence.
	Presidential pardon power overlaps with judiciary powers, limiting the practical significance of separated powers.

Checks and balances

The system operates through various mechanisms that allow each branch to restrict the actions of the others. Understanding these checks requires examining the specific powers each branch holds over the others. This intricate web of mutual limitations ensures that power must be negotiated and shared, rather than concentrated in a single authority.

Presidential checks on Congress

Presidents possess several tools to limit congressional power, ranging from direct rejection of legislation to strategic deployment of executive authority.

Veto power: Presidents can reject acts or resolutions passed by Congress. President Barack Obama vetoed the Keystone XL pipeline bill and issued 12 regular vetoes across his two terms. President Trump vetoed a resolution attempting to revoke his declaration of a national emergency at the US-Mexico border.

Executive orders: Presidents can bypass the need for formal legislation by issuing executive orders. In 2017, Trump introduced a travel ban affecting visitors from several predominantly Muslim countries through an executive order.

Commander-in-chief powers: Presidents can deploy US troops overseas without congressional approval to declare war. President George W. Bush ordered the invasions of Afghanistan (2001) and Iraq (2003) using this authority.

Presidential checks on the courts

The president also possesses significant powers over the judicial branch, particularly through appointments and the unique power of clemency.

Judicial nominations: The president nominates all federal justices, including Supreme Court justices when vacancies arise. Obama appointed Sonia Sotomayor and Elena Kagan, whilst Trump appointed Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to the Supreme Court.

Congressional checks on the president

Congress possesses substantial powers to limit presidential authority, making it the most powerful check on executive power in the constitutional framework.

Veto override: A supermajority (two-thirds approval in both houses) can overturn a presidential veto. In 2016, Congress overturned Obama's veto of the Justice Against Sponsors of Terrorism Act (JASTA) - the only veto override he experienced. George W. Bush had 4 of his 12 regular vetoes overridden. Trump had just one of his ten vetoes overridden, on a defence spending bill in January 2021.

Senate confirmation: The Senate must confirm presidential appointments to the administration and judiciary by simple majority. In 2013, the Senate blocked Obama's appointment of Robert Wilkins to the District of Columbia court of appeals. The last Cabinet nominee formally denied confirmation was John Tower as defence secretary in 1989. The last Supreme Court nominee formally rejected was Robert Bork in 1987.

Power of the purse: Congress controls funding and can reject presidential budget requests. Congress repeatedly frustrated Trump's attempts to secure full funding for his Mexican border wall.

Legislative obstruction: Congress can simply decline to pass legislation the president desires. Following the Sandy Hook school shooting in 2012, Obama requested several gun-control measures, but Congress passed nothing despite proposals being drawn up. Trump faced similar frustration when attempting to pass his healthcare reforms.

Treaty ratification: A two-thirds Senate vote is required to ratify treaties negotiated by the president. In 2012, the Senate failed to ratify the Convention on the Rights of Persons with Disabilities. Although it passed 61-38, it needed five more votes for ratification.

Congressional investigations: Congress can launch investigations into presidential actions where wrongdoing or concerns arise. In 2019, the House Oversight and Reform Committee investigated a potential conflict of interest involving increased US air force spending on refuelling at a Scottish airport near Trump's Turnberry golf resort.

Congressional checks on the courts

Congress also possesses important powers over the judiciary, though these are used less frequently than other checks.

Impeachment of judges: Congress can impeach federal justices and remove them from office. In 2010, Louisiana federal judge Thomas Porteous was successfully impeached and removed for corruption in a near-unanimous vote.

Constitutional amendments: Constitutional amendments can overturn Supreme Court verdicts. In 1896, the Court found a national income tax unconstitutional. This was reversed by the Thirteenth Amendment's ratification in 1913. Subsequent attempts to pass amendments banning flag burning and prayer in state schools have been unsuccessful.

Judicial checks on the president

The Supreme Court can significantly limit presidential powers through its power of judicial review, reinforcing the principle that no one is above the law, not even the president.

Judicial checks on Congress

The Supreme Court also limits congressional powers through its authority to review legislation against constitutional standards.

Declaring laws unconstitutional: Courts can declare acts of Congress unconstitutional, effectively requiring their repeal. In 2013, the Defense of Marriage Act was ruled unconstitutional in United States v Windsor, marking a major advance for same-sex marriage legalisation across the USA.

The significance of checks and balances

The system of checks and balances has far-reaching implications for how American politics operates. Its significance manifests in several important ways that shape daily governance and long-term political strategy.

Encouraging tactical workarounds

The system often encourages political actors, particularly presidents, to deploy alternative tactics to circumvent constraints. Many presidents prefer negotiating executive agreements over full treaties with international powers (such as Obama's nuclear deal with Iran), or declaring national emergencies to secure additional funding without express congressional approval (as Trump did over the USA-Mexico border). Presidents also frequently issue executive orders that bypass congressional approval, though these can be challenged in courts.

Concentration of checks on the presidency

Notably, the president faces more checks than any other branch. This clearly indicates the framers' primary fear - in their view, the main threat to good government was concentrating too much power in one person's hands. Yet paradoxically, the presidency has seen the greatest expansion of powers over the decades. This perhaps demonstrates that necessity drives political initiative.

Timing and divided government

Checks and balances affect the timing of presidential initiatives. Presidents face particular difficulties passing legislation when their party lacks congressional control - a situation known as divided government. Presidents often lose popularity midway through their 4-year term, leading to poor midterm congressional election performance and potential loss of one or both chambers.

Gridlock and partisanship

The elaborate checks and balances system means much national-level US politics is characterised by gridlock. With power levers often held by different actors, frequently little positive is achieved. By dispersing power, the Founding Fathers ensured - intentionally or otherwise - that stopping something (like a new law) is much easier than achieving something positive.

Variable significance of different checks

Not all checks and balances carry equal weight. The most powerful weapons - arguably impeachment - are rarely used and even less likely to succeed. Even the presidential veto is declining in use and perhaps overrated as a political tool. Obama vetoed 12 bills across his two-term presidency compared with Ronald Reagan's 78 vetoes during his two 1980s terms.

Remember!