Checks And Balances?

Michael Huemer explains why “checks and balances” cannot reasonably be expected to limit government:

“Americans are taught that they live under a system of ‘checks and balances’, whereby the executive, judicial, and legislative branches of government each restrain the others from abusing their power. This idea derives from Montesquieu, who influenced the framers of the American Constitution. 45 Thus, the judiciary has the power to strike down unconstitutional laws, thereby serving as a check on the power of the legislature. The executive branch has the power to appoint judges, which the legislature must approve; thus, the executive and legislative branches act to ensure the integrity of the judiciary. The legislature has the power to impeach the president, and the legislature may thus check the power of the executive branch. And so on. No branch of government is supreme, and each has important powers over the others.

This theory is missing one crucial element. That is an account of why each branch of government should be expected to use its powers to prevent the other branches from abusing their powers rather than, say, to assist the other branches in abusing their powers or to prevent the other branches from carrying out their legitimate functions. Again, it does not matter what our theory labels as the proper function of government officials. What matters is the incentive structure. Do the three branches of government each have an interest in ensuring that the other branches function properly without overstepping their constitutionally prescribed bounds?

Perhaps the theory is that the three branches are to some degree in competition with each other, such that no branch wishes to see the others become too powerful. 46 Neither Montesquieu nor the American founders, however, clearly explain why this should be thought to be the case. The legislature makes laws, the judiciary interprets the laws and determines when they have been violated, and the executive enforces the laws. Now suppose that the legislature passes laws that extend beyond the matters that the Constitution authorizes it to regulate. By this I mean, not laws that infringe upon the powers of the other branches of government, but laws that infringe upon the liberties of the people. In what way would this render the executive or judicial branches worse off? If anything, the latter two branches should be expected to expand. The more laws there are to enforce, the larger the executive branch will have to be. Likewise, the more restrictive the legal regime is, the more cases the courts will have to try and thus the larger the judiciary will have to be. If each branch wants to be larger and more powerful, there is some reason to think they should make common cause . There is, at any rate, no obvious reason to think they should each try to prevent the others from infringing upon the freedoms of the people.”

Huemer, Michael (2012-10-29). The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey (pp. 226-227). Palgrave Macmillan. Kindle Edition.

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