U.S. Constitution

blue-slipping

If the Senate initiates appropriations legislation, the House practice is to return it to the Senate with a blue piece of paper attached citing a constitutional infringement since all measures are supposed to originate in the House. The practice of returning such bills and amendments to the Senate without action is known as “blue-slipping.”

C-SPAN: “Without House action, Senate-initiated spending legislation cannot make it into law. So in practice, the Senate rarely attempts to initiate such bills anymore, and if it does, the House is diligent about returning them. Regardless of one’s opinion of the correct interpretation of the Constitutional provision, the House refusal to consider such Senate legislation settles the matter in practice.”

Electoral College

The Electoral College is a constitutionally mandated process that determines who serves as president and vice president of the United States every four years. It was a compromise between having Congress elect the president and a direct election by popular vote.

Americans actually vote for the electors who then vote for president when they convene after the election. Electors are chosen in processes defined by state law, creating a patchwork of selection processes.

Each state gets a number of electors equal to its number of members in the U.S. House of Representatives plus one for each of its two U.S. Senators. While most states award their electoral votes based on the winner of the popular vote in the state, there are two states which split their electors according to the vote in each congressional district.

The electoral map depicts which political party won which state in the presidential election. Over the years, red and blue states have come to mean Republican and Democratic states, respectively.

electoral map

The 2016 electoral vote map

The term “electoral college” actually does not appear in the U.S. Constitution and was derived from the concept of electors used by the Roman empire. However, in the early 1800’s the term “electoral college” came into general usage as the unofficial designation for the group of citizens selected to cast votes for President and Vice President. It was later written into Federal law in 1845.

There have been many attempts to reform the Electoral College over the years, but those efforts have typically fallen short. One notable exception was the 12th Amendment’s separation of electoral votes for president and vice president.

A more promising reform effort in recent years is the National Popular Vote Interstate Compact which takes a state-by-state approach to electoral reform that is distinct from the long history of attempts to amend the U.S. Constitution. States that sign on to the compact promise to award their electoral votes to whichever candidate wins the popular vote nationally, regardless of which way their state votes.

recess appointment

A presidential appointment typically requiring Senate approval that is made during a Senate recess. To be confirmed, the appointment must be approved by the Senate by the end of the next session of Congress or the position becomes vacant again. Recess appointments are authorized by  Article II, Section 2 of the U.S. Constitution.

Recess appointments permitted the president to make appointments when the Senate was adjourned for lengthy periods. More recently, however, the president has used the privilege to push through unpopular candidates. For example, during his second term, President Bush appointed several controversial candidates while the Senate was in recess.  In 2007, Senate Majority Leader, Harry Reid, retaliated by holding pro forma sessions during Senate recesses. As a result, the Bush administration was unable to make further recess appointments.

checks and balances

checks and balances

“Checks and balances” refers to the Constitutionally mandated separation of powers that results from divided branches of government.

The U.S. Constitution divides power among the three branches of government — executive, legislative, and judicial — to prevent any one from having too much power. Each branch is said to have the ability to check the power of the others, thereby maintaining a balance in the government.

Though it’s sometimes said the United States has three “equal” branches of government, in reality the power of each has fluctuated throughout history.

Examples of checks and balances include:

  • The president (Executive) is commander in chief of the military, but Congress (Legislative) approves military funds.
  • The president (Executive) nominates federal officials, but the Senate (Legislative) confirms those nominations.
  • Both the House and the Senate have to pass a bill in the same form for it to become law.
  • Once Congress (Legislative) passes a bill, the president (Executive) has the power to veto it.
  • The Supreme Court (Judicial) and other federal courts can declare laws or presidential actions (Executive) unconstitutional.

The idea of checks and balances in government dates back to ancient times, as described by History.com: “In his analysis of the government of Ancient Rome, the Greek statesman and historian Polybius identified it as a ‘mixed’ regime with three branches: monarchy… aristocracy…and democracy. These concepts greatly influenced later ideas about separation of powers being crucial to a well-functioning government.”

Years later, in his work “The Spirit of the Laws” in the 18th century, Enlightenment author Montesquieu codified the idea of “checks and balances” when he warned of the threat of despotism by suggesting that there should be different parts of the government to exercise legislative, executive and judicial authority, all under the rule of law.

Montesquieu’s suggestion was later adapted by James Madison who, often described at the Father of the Constitution, wrote: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

Most historians agree that, like with any part of living history, the system of checks and balances has served our country well but goes through periods of stress, particularly during events like government shutdowns. As noted by Politico: “Our forefathers in their wisdom established a system of checks and balances in our Constitution to limit power in any one branch of government. That system has worked effectively for more than 200 years to limit power, but it also led to periods of legislative gridlock. We are in one of those periods of total gridlock with the current partial shutdown of the federal government. Each of the parties has dug in.”

Throughout the years, many have argued that the system of checks and balances is failing, as noted here, in reference to NSA’s controversial practice of telephone surveillance of U.S. citizens.

During the Trump administration, the system of “checks and balances” came under intense scrutiny, with a litany of articles suggesting the 45th president, with help from Congress, had placed too much power in the hands of the Executive branch.

The Bulwark: “The Trump administration’s radical expansion of executive power is beckoning what the Founders called “the very definition of tyranny.”

The Atlantic: “By the letter of the Constitution, and by the unwritten norms of American separation-of-powers governance, the main restraint on an overreaching, dishonest, or incompetent executive is a resolute legislative branch. But today’s legislative leaders—Mitch McConnell and his slim Republican majority in the Senate, Paul Ryan and his large Republican majority in the House—are ostentatiously refusing to play that check-and-balance function.”

Many blame the rise of intense partisanship over the last 20 years to further erosion of our system of checks and balances.

 

 

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