Executive-Judicial Checks and Balances

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Executive-Judicial Checks and Balances

The U.S. Constitution divides the government into three branches: legislative, executive, and judicial. Generally speaking, the legislative branch, Congress, makes the nation's laws. The executive branch enforces the laws through the president and various executive offices. The judicial branch, made up of the Supreme Court and lower federal courts, decides cases that arise under the laws.

This division of government is called the separation of powers. The separation of powers is supposed to prevent tyranny. Tyranny is arbitrary (random) or unfair government action that can result when one person has all the power to make, enforce, and interpret the laws.

In addition to the broad separation of powers into three branches, the Constitution keeps the executive and judicial branches separate with two specific provisions. Under Article III, Section 1, judges of the Supreme Court and lower federal courts "hold their offices during good behavior." This means the president cannot remove judges from office. Instead, only Congress can remove judges through impeachment and conviction for treason, bribery, and other high crimes and misdemeanors under Article II, section 4. The Constitution defines treason as levying war against America or giving aid and comfort to its enemies. Bribery is an illegal payment to influence official action.

Likewise, the president can be removed from office only through impeachment and conviction by Congress. The Supreme Court and lower federal courts do not hear impeachment cases. This ensures that only Congress, which is accountable for its actions at election time, can remove a president from office. Supreme Court justices and lower court judges, who are appointed by the president and so are free from popular control, cannot remove a president.

Checks and balances

The men who wrote the Constitution in 1787 wanted each branch's power to be separate, but not absolute. They considered absolute power, even over just a portion of the government, to be dangerous.

To prevent the power of any one branch from being absolute, the Founding Fathers wrote the Constitution to contain a system of checks and balances. These are powers that each branch has for limiting the power of the other branches. Some scholars say the system of checks and balances actually creates a government of shared powers instead of one with separated powers.

The judiciary's main powers over the president are judicial review and judicial interpretation. Judicial review is the power to review executive action to determine if it violates the Constitution. Judicial interpretation is the power to determine the validity and meaning of executive agency regulations. Other judicial checks include the writ (judicial order) of habeas corpus, the writs of mandamus and prohibition, and the chief justice's role in impeachment of the president. A writ of habeas corpus is a procedure that prisoners can use to get released if they are being held in violation of the law. The writ requires a jailer to bring the prisoner before a court, where a judge can set the prisoner free if he or she is being held in violation of constitutional rights. A writ of mandamus is a court order that forces government officials to do their jobs. A writ of prohibition is a court order preventing a government official from doing something prohibited by law.

The executive branch's main powers over the judiciary are the appointment power, executive privilege, and the power to issue pardons and reprieves.

Judicial review

Judicial review is the power to review government action for compliance with the Constitution. The Constitution does not specifically give the federal judiciary this power. Instead, the Supreme Court assumed the power in its decision in Marbury v. Madison in 1803.

The case began in 1801, in the waning days of the administration of President John Adams (1735–1826; served 1797–1801). One of the last things Adams did as president was sign commissions, or orders, appointing people to serve as justices of the peace in the District of Columbia. Adams's secretary of state, John Marshall (1755–1835), was supposed to deliver the commissions to the appointees. Marshall failed to deliver all of them before Adams left office.

When President Thomas Jefferson (1743–1826; served 1801–9) took office in March 1801, he did not want the people appointed by Adams to take office because they were members of the Federalist Party, the main rival to Jefferson's Democratic-Republican Party. When William Marbury and other appointees asked the new secretary of state, James Madison (1751–1836), to give them their commissions, Madison refused under orders from Jefferson.

Marbury sued Madison in the Supreme Court. The Judiciary Act of 1789 gave the Supreme Court the power to hear cases for writs of mandamus. Marbury wanted the Supreme Court to force Madison to give him his commission.

The Supreme Court did not get to decide the case until 1803. The same John Marshall who had neglected to deliver Marbury's commission in the first place was now chief justice, or leader, of the Supreme Court. (Historians generally agree that if a situation similar to this case came up today, Marshall would disqualify himself due to a clear conflict of interest.) Marshall wrote the court's opinion, saying that Marbury deserved the commission and that Madison should deliver it. The Supreme Court, however, could not issue a writ of mandamus to force Madison to do his job. Marshall said the Judiciary Act of 1789 violated the Constitution because the Constitution does not allow people to sue in the Supreme Court for writs of mandamus. Such cases must begin in a lower federal court and be appealed to the Supreme Court if necessary.

Since Marbury v. Madison, the Supreme Court has used judicial review to scrutinize acts of Congress and actions of the executive branch in cases before it. The main limitations on executive power in such cases are the limitations on searches and seizures under the Fourth Amendment and the rights of criminal defendants under the Fifth and Sixth Amendments.

Searches and seizures: the Fourth Amendment

America adopted the Fourth Amendment of the Constitution in 1791, three years after adopting the Constitution itself. The Fourth Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment is supposed to restrict the law enforcement activities of the executive branch. Law enforcement agents who investigate crimes often have to search houses, seize possible evidence, and arrest people. The Fourth Amendment says law enforcement must do these things reasonably.

Law enforcement agents often need to get a warrant to conduct a search, seize evidence, or arrest a person. A warrant is a court order authorizing such action. The Fourth Amendment says courts should not issue warrants without testimony or the sworn statement of a witness demonstrating probable cause. Probable cause is a reasonable belief that the search or seizure could produce evidence of a crime. Courts check the power of law enforcement by denying warrant applications when the government does not have enough evidence to support a search, seizure, or arrest.

After law enforcement conducts an investigation, federal prosecutors decide whether to file criminal charges against a suspect. The trial process is another chance for the federal judiciary to check the law enforcement power of the executive branch. Sometimes law enforcement agents collect evidence of a crime by violating the Fourth Amendment. For example, they might search a house or seize evidence without a warrant, or in a manner that violates the terms of the warrant they have.

When law enforcement agents gather evidence by violating the Fourth Amendment, criminal defendants ask the court to enforce the exclusionary rule. The exclusionary rule is a rule created by the U.S. Supreme Court. In general, it prevents the federal government from using evidence at a criminal trial that it got by violating the Fourth Amendment. Enforcement of the exclusionary rule can result in dismissal of criminal charges, even against guilty defendants. In this way, the exclusionary rule encourages law enforcement authorities to obey the Fourth Amendment.

Rights of criminal defendants: the Fifth Amendment

Criminal defendants have other rights under the Fifth and Sixth Amendments, also adopted in 1791. The Fifth Amendment says:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. . . .

The federal judiciary checks the law enforcement power of the executive branch by enforcing this amendment in cases against criminal defendants. Under the Grand Jury Clause, the executive branch must use grand juries to charge criminal defendants with capital or infamous crimes. Capital crimes are crimes that may be punishable by death, meaning the death penalty. For example, first degree murder, which means premeditated or preplanned murder, is a capital crime. Infamous crimes are crimes that, under the common law, made a person incapable of testifying in court because of untrustworthiness. Under the common law (judge-made law in English and early-American courts), infamous crimes included treason, felonies, and crimes involving dishonesty, such as

The Steel Seizure Case

In 1950, the communist government of North Korea invaded South Korea in Asia. President Harry S. Truman (1884–1972; served 1945–53) sent American troops to help South Korea. Although Congress has the sole power to declare war, Congress did not give Truman prior approval for his decision.

In 1952, the steel industry was having a dispute with its workers. The United Steel Workers of America (USWA) was a labor union that represented the workers in the dispute. When talks failed to settle the dispute, the USWA decided to support a nationwide labor strike beginning April 9, 1952. A strike is when laborers stop working to protest working terms or conditions.

Truman feared a steel strike would hurt the war effort in South Korea by reducing the production of aircraft, guns, and ammunition. On April 8, the day before the strike was to begin, Truman ordered Secretary of Commerce Charles Sawyer to seize the nation's steel mills so the government could force production to continue.

Truman said the Constitution and laws of the United States gave him the power to seize and operate the steel mills. He relied especially on the portion of the Constitution making him commander in chief of the armed forces. Truman reasoned that in that role, he could seize private steel mills to help the war effort. Indeed, presidents before Truman had seized industries during wartime to avoid labor strikes, sometimes because war legislation from Congress gave them that power.

The Youngstown Sheet and Tube Co. filed a lawsuit against Secretary Sawyer. It argued that President Truman and Secretary Sawyer violated the Constitution by seizing private property without congressional authority. Indeed, when passing the Taft-Hartley Act in 1947, a federal law concerning labor strikes, Congress specifically decided not to give presidents the power to seize industries to stop strikes.

The government conceded that there was no specific congressional law giving Truman the power to seize the steel mills. It argued, however, that Truman implicitly had that power as head of the executive department and commander in chief of the military forces.

The case made it to the U.S. Supreme Court, which announced a decision on June 2, 1952. By a vote of 6–3, the Court said Truman lacked the power to seize the steel mills unless Congress gave him such power. The Court relied heavily on the fact that Congress had declined to give presidents such power in the Taft-Hartley Act. Writing the opinion for the Court, Justice Hugo L. Black (1886–1971) said Truman had to ask Congress for that power if he thought it was necessary.

In a concurring opinion agreeing with the Court's decision, Justice William O. Douglas (1898–1980) wrote, "The emergency did not create power; it merely marked an occasion when power should be exercised. And the fact that it was necessary that measures be taken to keep steel in production does not mean that the president, rather than the Congress, had the constitutional authority to act."

Three justices issued a dissenting opinion written by Chief Justice Frederick M. Vinson (1890–1953), disagreeing with the Court's decision. Vinson wrote, "The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster. Instead, the president must confine himself to sending a message to Congress recommending action. . . . Presidents have been in the past, and any man worthy of the office should be in the future, free to take at least interim [temporary] action necessary to execute legislative programs essential to survival of the Nation."

After the decision, Truman asked Congress to give him the power to seize the steel mills. Congress declined. According to Joan Biskupic and Elder Witt in The Supreme Court & the Powers of the American Government, the USWA labor strike started after the Supreme Court's decision and lasted until July 24, 1952. Truman blamed the strike for ammunition shortages that summer and fall.

perjury. Treason means an act of war against the United States. Felonies refer to the most serious kinds of crime, usually punishable by either death or imprisonment for more than one year. Perjury is lying under oath. A grand jury is a group of citizens who review the evidence against a suspect to make sure there is enough to hold a criminal trial. Federal judges oversee grand jury proceedings to make sure they comply with the law.

The Fifth Amendment's Double Jeopardy Clause says a person may not be tried twice for the same crime. Federal courts enforce this clause against prosecutors. Sometimes a case against a defendant is stopped before the case is finished. In such instances, federal courts must decide whether the first case went far enough to make a second case illegal under the Double Jeopardy Clause.

The Fifth Amendment prevents prosecutors from forcing a criminal defendant to testify at his or her own trial. This is called the privilege against self-incrimination. This privilege also allows criminal suspects to refuse to answer questions during investigations, a practice commonly referred to as "taking the fifth." In criminal cases, federal courts sometimes have to decide whether investigators or prosecutors got evidence from a defendant by violating the privilege against self-incrimination. Under the exclusionary rule, courts are not supposed to allow prosecutors to use such evidence against the person whose privilege was violated.

The Due Process Clause of the Fifth Amendment says the government may not take a person's life, liberty, or property without due process of law. Generally, due process requires a criminal defendant to have notice of the charges against him or her and a chance to present a defense in a fair proceeding. Federal courts check the power of law enforcement by enforcing this clause in criminal prosecutions.

Rights of criminal defendants: the Sixth Amendment

The Sixth Amendment says:

In all criminal prosecutions, the accused shall enjoy a right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory [required] process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Congress has passed federal laws concerning a defendant's constitutional right to have a speedy public trial by a fair jury in the district where the crime was committed. Federal courts check the power of the executive branch by enforcing these laws in criminal cases. The courts also make sure defendants have fair notice of the charges against them.

Under the Confrontation Clause, a defendant has the right to face the witnesses against him or her. This means that, generally, witnesses have to testify against defendants in open court, and defendants cannot be banned from court during the testimony. Defendants also have the right to force witnesses with favorable evidence to appear in court to testify during criminal trials. Federal courts enforce this right with subpoenas, which are court orders for witnesses to appear in court to give testimony.

Judicial interpretation

Judicial interpretation is the act of deciding what a congressional law or executive regulation means. In theory, judicial interpretation is not supposed to be a check on congressional or executive power. Instead, it is supposed to determine and enforce the will of Congress or the executive branch. In practice, however, interpreting laws and regulations gives courts considerable power to determine what they mean, which can affect the exercise of congressional and executive power.

Judicial interpretation affects the regulatory work of executive agencies. Agencies are executive offices responsible for enforcing specific areas of federal law. The Environmental Protection Agency (EPA), for example, enforces congressional laws that regulate the amount of pollution of air, land, and water.

Executive agencies get their power from such congressional laws. Congress, for instance, has given the EPA the power to enforce the Clean Air Act and the Clean Water Act (among other laws). These laws contain very general standards concerning the pollution of air and water. To enforce them, the EPA writes regulations. Regulations are like congressional laws, but they contain much more detail.

People and businesses in America must obey both congressional laws and executive regulations. If the EPA thinks someone has violated a law or regulation, it can file a civil or criminal case against the offender. The EPA usually resolves such cases by agreements with the offenders or by holding administrative hearings in EPA offices.

Occasionally, however, these cases end up in the federal courts. When they do, federal judges have to interpret the agency's regulations. Interpretation requires the judge to decide whether the agency had the power to adopt the regulation under the relevant congressional law. In this way, interpretation acts as a check on executive power by making sure the agency has not done something Congress did not authorize it to do.

If a regulation was lawfully adopted under congressional law, the judge must decide what the regulation means, and whether the defendant violated it. This process gives the federal judiciary considerable power over the regulatory actions of the executive branch.

Writs of habeas corpus

Federal authorities sometimes arrest, imprison, or convict a person in a way that violates his or her rights under the Constitution or federal law. When this happens, the person can apply to a federal court for a writ of habeas corpus. The writ requires federal authorities to bring the accused to court so he or she can ask the court to decide whether the imprisonment is illegal. If the court agrees with the prisoner, it can order him or her to be released, even if he or she is guilty of a crime.

According to the U.S. Supreme Court, federal courts only have the power to issue writs of habeas corpus if congressional law gives them the power. The court, however, might be wrong about this. Article I, Section 9, of the Constitution says, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." This arguably means Americans have a constitutional right to seek writs of habeas corpus, whether or not Congress authorizes the power. Congressional law, however, has authorized writs of habeas corpus since the federal government began to operate under the Constitution in 1789.

Writs of mandamus and prohibition

A writ of mandamus is a court order forcing a government official to do something required by his or her job. A writ of prohibition is a court order preventing a government official from doing something prohibited by his or her job.

The U.S. Constitution does not mention writs of mandamus and prohibition. Instead, Congress has passed laws giving the federal courts such power. Use of this power acts as a check on the powers of the executive branch.

Courts generally issue writs of mandamus only to compel government officials to do ministerial acts. A ministerial act is one that does not involve discretion, or judgment. Instead, it is action clearly required by the law. An example is issuance of a permit or license to an applicant who qualifies for it.

A discretionary act is an act that requires a government official to exercise judgment. An example is a U.S. attorney's decision whether to prosecute a suspected criminal. Courts generally will not issue writs to compel discretionary conduct because judges are not supposed to substitute their judgment for that of government officials.

In practice, federal judges rarely issue writs of mandamus or prohibition. Instead, if they think a writ is necessary, they write an opinion explaining why and give the government official a chance to correct his or her conduct without being compelled by a writ.

The chief justice's role in presidential impeachments

Under Article II, Section 4, executive officials may only be removed from office by impeachment for and conviction of treason, bribery, and other high crimes and misdemeanors. Under Article I, Congress has the sole authority to conduct the process. The House of Representatives can impeach officials by vote of a simple majority. Impeachment serves as an accusation of misconduct. Once impeached, an official faces trial in the Senate, which can remove the official by vote of at least a two-thirds majority. The federal judiciary plays no role in the process.

There is one small exception to this rule. Normally, the vice president presides over Senate impeachment trials because he is officially the president of the Senate under Article I, Section 3, of the Constitution. When the president faces an impeachment trial in the Senate, however, the chief justice of the Supreme Court presides instead of the vice president. Because the vice president stands to get the job of a president who is removed from office, it would not be fair to let him or her preside over the trial. In this way, the chief justice serves as a check on the vice president's senatorial power and, therefore, a check on the legislative branch as well.

The chief justice, who is the leader of the Supreme Court, has a limited role in presidential impeachment trials. He or she does not get to vote whether to convict and remove the president. The chief justice mainly interprets and enforces the Senate's rules for conducting the trial. Under the rules, the Senate can overrule an interpretation or decision by the chief justice. The chief justice's presence, however, lends an air of credibility and authority to the controversial business of trying to remove a president from office. In American history, there have been only two times that a president has been impeached: Andrew Johnson (1808–1875; served 1865–69) in 1868 and Bill Clinton (1946–; served 1993–2001) in 1998. Neither was removed from office, though Johnson retained his position by only a single vote.

Appointment power

Under Article II, Section 2, of the Constitution, presidents have the power to nominate people to serve on the Supreme Court and lower federal courts. The Senate gets to vote whether to approve or reject these nominations. A simple majority is all that is required to approve the president's choices.

Supreme Court justices and lower federal judges serve as long as they want unless impeached and convicted by Congress for treason, bribery, or other high crimes and misdemeanors. This means presidents cannot remove them from office. Presidents get to appoint new justices and judges only when one retires or when Congress creates a new seat on a court.

The power to appoint justices and judges to the Supreme and lower courts, however, acts as a check on the power of the Court. This is especially true when the president's political philosophy differs greatly from those of the Supreme Court justices. When justices retire, the president can affect the Supreme Court's decisions for years or decades into the future by nominating justices who agree with his philosophies, as long as the Senate approves the nominations.

Executive privilege

The executive branch often faces demands that it produce information about its conduct. Congress might ask for information on how an executive agency is functioning under federal law. A special prosecutor might demand information on whether a president or other executive official has violated the law. Citizens can request information under a law called the Freedom of Information Act (FOIA). When a government office gets a FOIA request from a citizen, it must respond to the request in a certain amount of time. Much of the time, the office has to release the information requested. The FOIA law, however, allows the government to keep certain kinds of information secret. Examples include information relating to national security, and private business information of individual companies. Citizens and the government frequently end up in lawsuits over whether the government must release information requested under the FOIA.

Roosevelt's Court-packing Plan

The president of the United States gets to appoint people to serve on the U.S. Supreme Court and lower federal courts. In 1937, President Franklin D. Roosevelt (1882–1945; served 1933–45) tried to use the power to change the philosophical makeup of the Supreme Court.

Roosevelt had entered office in 1933, when the country was in the middle of the Great Depression (1929–41). The Great Depression was a period in the 1930s when the U.S. economy reached an extreme low point. By 1933, industrial production had fallen to half of 1929 levels, leaving one out of every three or four working Americans without a job.

Roosevelt wanted to revive the American economy with a program he called the New Deal. The New Deal was a series of bills designed to pump government money into the economy, raise commodity prices, provide relief to debtors, and regulate wages and trade practices, all to improve the economy. Beginning in March 1933, Congress passed and Roosevelt signed dozens of New Deal bills into law.

People and businesses who were harmed by the New Deal filed lawsuits challenging the laws, and many of the cases reached the U.S. Supreme Court. According to Joan Biskupic and Elder Witt in The Supreme Court & the Powers of American Government, the court struck down eight major New Deal statutes between January 1935 and June 1936. The nine-person court often voted 5–4 or 6–3 in these close cases.

In 1936, the country reelected Roosevelt to his second term. The results were overwhelming, with Roosevelt winning the popular vote in every state except Maine and Vermont. Roosevelt took this as a sign of support for his New Deal program.

On February 5, 1937, Roosevelt sent Congress a message. He asked Congress to increase the number of seats on the Supreme Court from nine to fifteen, and to allow Roosevelt to fill the new seats whenever a justice over seventy years of age did not resign. Four justices who regularly voted against the New Deal, including James C. McReynolds (1862–1946), Willis Van Devanter (1859–1941), George Sutherland (1862–1942), and Pierce Butler (1866–1939), were already over seventy. Roosevelt's theory was that by appointing new justices to a fifteen-member court, he would be able to change the philosophy of the court to support his New Deal.

Roosevelt's plan was controversial. Many Democrats in Congress sided with Republicans against the plan. According to Biskupic and Witt, Secretary of the Interior Harold Ickes said, "The president has a first class fight on his hands. Practically all of the newspapers are against him."

Developments in the months after Roosevelt's proposal made the proposal unnecessary. In five cases from March to May 1937, the Supreme Court approved New Deal legislation. On May 18, Justice Van Devanter announced he would resign at the end of the Supreme Court's term.

Between 1937 and 1940, Roosevelt appointed four new justices to the Supreme Court. His proposal to add more judges, or "pack" the court, however, cost him support from moderate Democrats. Many of them joined with Republicans to prevent new New Deal legislation from passing Congress after the court-packing plan was over.

If an executive official resists a demand for information, the person seeking the information can sue for it. Federal courts can force an official to produce information if production is required or allowed under the applicable law. Serving in this role, federal courts act as a check on the secret exercise of executive power.

When executive officials defend such cases, they have two main strategies. First, they often argue that the applicable law does not require them to produce the desired information. Second, they sometimes argue that they have a privilege, called executive privilege, that allows them to keep the information secret.

The executive privilege is a right to keep information secret for national safety or the public good. The Constitution does not give the executive branch an executive privilege. Instead, presidents have created it themselves, and the Supreme Court has approved it. When an executive official successfully keeps information secret, he or she checks the power of Congress, the courts, and the citizens to require access to governmental information. Some scholars and citizens consider such secrecy to be an abuse of executive power. Others think it is necessary for the executive branch to handle important government matters. Richard Nixon (1913–1994; served 1969–74), for instance, unsuccessfully tried to use executive privilege amidst the Watergate scandal. His participation in the cover-up of a burglary of the Democratic National Committee headquarters in 1972 led to his resignation in 1974.

Pardons and reprieves

Article II, Section 2, gives the president the power to grant pardons and reprieves for offenses against the United States. A pardon is complete forgiveness for a crime. It prevents the criminal from being punished by the law. A reprieve suspends a sentence, or punishment, to give a criminal time to ask the court to change the sentence. The pardon power checks the power of the courts by allowing a president to forgive a criminal if he thinks the court's sentence was unfair. On December 24, 1992, outgoing president George Bush (1924–; served 1989–93) pardoned six members of the administration of Ronald Reagan (1911–2004; served 1981–89) who were involved in the Iran-Contra arms-for-hostages investigation, including former defense secretary Caspar Weinberger (1917–). According to U.S. Information Agency writer Dian McDonald, Bush pardoned the men, who had not gone to trial, because the "common denominator of their motivation—whether their actions were right or wrong—was patriotism."

For More Information


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Dougherty, J. Hampden. Power of Federal Judiciary over Legislation. New York: Putnam's Sons, 1912. Reprint, Clark, NJ: Lawbook Exchange, 2004.

Janda, Kenneth, Jeffrey M. Berry, and Jerry Goldman. The Challenge of Democracy. 5th ed. Boston: Houghton Mifflin Company, 1997.

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Marbury v. Madison, 1 Cranch 137 (1803).

Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).


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