The problem of power of governments was a concern to the writers of the Constitution. They wanted to strike a balance between a government that could be respected by the people and a government that could or may abuse its power. In order to attain that balance, they divided the power between the states and the federal government. Then they separated the power of the federal government among its three branches, (legislative, judicial, executive). In this way it was determined that no part of the government would become too powerful.
Division of Power
A federal form of government must decide how power can be shared between the state and the federal, or central, government. The Constitution does this by listing (enumerating), the powers of Congress. Specific powers given to the central government are plainly and clearly stated. But the Constitution goes further by awarding Congress “elastic power” in Article I, Section 8, Clause 18. This “elastic clause” allows Congress the power “to make all laws which shall be necessary and proper” to carry out the duties of government.
The Constitution also lists the powers that are denied to Congress. This is for the protection of the rights of the people. It also lists any specific powers that are denied to the states. As an example, states cannot declare war, enter into any treaties, coin or print money, or violate certain rights of the people.
This division of the powers between the states and the central government is accomplished by:
- Listing the powers of the federal government, including the “elastic power” clause
- Listing the powers denied to the federal government
- Listing the powers denied to the state governments
- Reserving all other powers that are not given to the federal government or denied to the states for the states. This was made clear in the 10th Amendment in 1791.
The powers reserved to the states are also known as “residual powers” because these powers “reside” with the states. These include control of education, marriage, divorce, and voting. Notwithstanding, the federal government may require that state education and voting laws apply equally to all citizens of a state.
Certain powers are shared by states and the central government. These are known as “concurrent powers” and include the powers to:
- Make tax laws and collect taxes
- Borrow money
- Build roads
- Protect the health, safety, and welfare of the people. These powers are also known as “police powers.”
Separation of Power
The Constitution allows the federal government great power, and that power has expanded over the years. However, the Constitution ensures there is a separation of power among the three branches of the federal government. In general, the Legislative branch makes the laws, the Executive branch enforces the laws, and the Judicial branch interprets the laws. It does not stop there, The Constitution provides for a system of “checks and balances” among the three branches.
This system of checks and balances allows each branch to check the power of the other branches. This gives a balance of power among the branches of government, so that one branch is not more powerful than the other. For example:
- Congress passes bills, but they must be approved by the President before they can become laws. The President has the power to disapprove or “veto” a bill. This is one way that the Executive branch checks the Legislative branch.
- The President appoints all federal judges, including the justices of the Supreme Court. This is one way the Executive branch checks the Judicial branch.
This gives power to the Executive branch, but:
- Congress can override the veto of a President by a two-thirds majority vote. In such cases, the bill becomes a law without the approval of the President. This is one way the Legislative branch checks the Executive branch.
- Congress must pass tax bills to raise money, and must also pass bills giving money to the government for its spending needs. This is one way the Legislative branch checks the Executive branch.
- The Senate (a part of Congress) must approve the President’s nomination of federal judges. This is one way the Legislative branch checks the Executive and Judicial branches.
- Congress has the power to impeach and remove the President and federal judges for acts of wrongdoing. This is one way the Legislative branch checks the Executive and Judicial branches.
This gives power to the Legislative branch, but:
- The judicial branch has the power to rule on whether laws passed by Congress are constitutional. The Supreme Court may nullify laws it considers unconstitutional when those laws are involved in a case coming before the court. This is one way the judicial branch checks the Legislative and Executive branches.
- Once they are nominated by the President and approved by the Senate, all federal judges serve for life. This in one way the judicial branch checks the Legislative and Executive branch.
The U.S. Constitution and the states’ constitutions
The U.S. Constitution and the individual state constitutions provide the basis for statutes, court decisions, and other rules and regulations. This is the system of law that exists in the United States.
Statutes are laws that are enacted by Congress or by state and local legislatures. Keep in mind that:
- Local statutes apply to local areas only
- State statutes apply only to the states passing the statutes
- Federal statutes apply to the entire nation
- Federal statutes involve activities or commerce in two or more states
- Federal statutes are supreme over local or state laws in matters involving the federal authority.
Court decisions affect law by interpreting the meaning of laws that are passed by Congress. The federal courts may also determine whether a law is constitutional. Such actions by the courts must be as a result of actual cases that come before the judges.
Rules and Regulations
The Legislative and Executive branches have endured a heavy work load over the years. This has led to the creation of a number of independent executive agencies and regulatory agencies or commissions. These are created by acts of Congress, and members are appointed by the President, with the Senate making final approval.
The bills creating agencies and commissions give them specific powers. The rules and regulations developed by agencies and commissions have the same effect as statutes. Though these agencies and commissions are independent in many ways, they may be influenced by the President and Congress.
Some of these independent agencies are:
- The Veteran’s Administration
- The General Services Administration
- The Office of Personnel Administration
Some of the independent regulatory commissions are:
- The Interstate Commerce Commission
- The Securities and Exchange Commission
- The Nuclear Regulatory Commission
Lesson 5 Review
Directions: Answer each question below by writing a strong paragraph that includes supporting information from the lesson. Please cite your outside resources.
A strong paragraph includes a minimum of three to five details from the lesson and is written in Academic English form. For more information on Academic English form, refer to the documents in the Orientation.
The following are “headlines” from a newspaper. Give your opinion of the events or “story” behind the “headline.”
Explain how each is an example of ‘checks and balances’ in the government.
Example (#1): Do you agree or disagree that the state should build roads with the help of federal funds. Is it fair for all states to give money for another state to build roads? How does this relate to the system of checks and balances. Explain your position with reasons and examples.
1. STATE TO BUILD ROAD WITH HELP OF FEDERAL FUNDS
2. PRESIDENT VETOES BILL TO INCREASE AUTOMOBILE TAX
3. SENATE VOTES APPROVAL OF THREE NEW FEDERAL JUDGES
4. SUPREME COURT DECLARED NEW TAX LAW UNCONSTITUTIONAL
5. CONGRESS CUTS PRESIDENT’S REQUEST FOR FUNDS FOR AIR FORCE