Checks And Balances In The US Constitution (Essay Sample)

As a direct result of the way that “checks and balances” is set up by the Constitution, is any specific branch of the national government missing the necessary power to properly protect the rights of citizens? Choose one branch and explain why it is prevented specifically by “checks and balances” from being able to properly protect citizen rights.
Every branch of the government has its express powers enumerated in the Constitution. Although there is the separation of power, the founders of the Constitution incorporated checks and balances to safeguard against the abuse of power (Chemerinsky, 2019). In the checks and balances, the three branches of the government often have overlapping functions, preventing one branch of the government from abusing its power (Chemerinsky, 2019). In Mistretta v. the United States, the Court stated, "the greatest security against tyranny lies not in a hermetic division among the Branches, but in a carefully crafted system of checked and balanced power within each Branch" (Chemerinsky, 2019). For instance, the executive may take part in the lawmaking process, primarily a responsibility of the legislative branch through the President's power to recommend and veto (Chemerinsky, 2019). Similarly, the legislative branch may influence the executive branch's decision by its power to impeach the executive and through the right to reject the nominees recommended by the President (Chemerinsky, 2019).
On the other hand, the powers of the judiciary can be influenced by the legislative branch and the executive branch by selecting the judges who serve in the federal and local courts (Chemerinsky, 2019). Therefore, no branch of government works independently of the other branch. As much as such a design creates friction from time to time, it is critical in protecting the American people and the Constitution from individuals who could have used their sole power to destroy the America we know.
The Legislative Branch of the United States consists of the House of Representatives and the Senate, which form the Congress. The powers of Congress are enumerated in Article I of the Constitution. According to Article I of the Constitution, Congress has the sole power to enact laws, declare war, and the power to reject or accept individuals nominated by the President (The White House, 2021). Most often, the powers of Congress are under scrutiny from the public and the judiciary. When the judiciary reviews the conduct of the Legislative Branch, it is known as the Judicial review of the legislative process. According to Bar-Siman-Tov (2011), the judicial review of the legislative process determines the constitutionality of the laws enacted by Congress by examining the process Congress used in establishing the law. The judiciary works on the assumption that law must meet certain procedural requirements during the process of enactment for it to qualify to be a law. And it is the work of the judiciary to determine that all the thresholds have been satisfied by Congress before enacting a law.
The judiciary determines the constitutionality of every controversial decision made by Congress. Judicial review limits the power of the Legislative branch to some extent, thus limiting the power of Congress to make some decisions. According to Bar-Siman-Tov (2011), the judicial review of the legislative process examines the law passed by the legislature to ensure that it is in accordance with the Constitution. Typically, the judiciary asks whether the contents of the statute enacted by the legislature infringe upon individual rights and liberties protected by the Constitution (Bar-Siman-Tov, 2011).
In 2006, Congress passed the Military Commission Act of 2006, and President Bush signed it into law. The Act gave the President sole authority to imprison individuals assumed to be enemies of the state without charging them with a crime (American Civil Liberties Union, n.d.). In 2008, two Algerians were arrested for plotting a crime against the United States. The two were sent to Guantanamo Bay, where they were imprisoned indefinitely based on the provisions of the Military Commission Act of 2006 (American Civil Liberties Union, n.d.). One of the accused individuals challenged the constitutionality of the Military Commission Act of 2006, which barred individuals held in Guantanamo Bay from challenging the constitutionality of their capture and detention in US federal courts in Boumediene v. Bush (American Civil Liberties Union, n.d.).