LLB Notes: System of Check and Balance under USA Constitution
Introduction
There is great relation between doctrine of separation of powers and doctrine of check and balance. Doctrine of separation of powers is an ancient doctrine and its origin can be traced out in ancient societies of world. Almost seven centuries ago, struggle for power between British Monarch and landowners, religious leader and commons paved a way for separation of powers in great Britain. In fact,, this struggle initially started against absolute powers of British Monarch and finally resulted into separation of powers.
With the passage of time, some defects appeared in doctrine of separation of powers. To remove these defects, doctrine of check and balance was originated. According to doctrine of separation of powers, a constitutional government consists of three separate branches and these branches are legislature, executive and judiciary. Each of these branches has defined powers to check the powers of other branches. In fact, these branches are to check one another from abusing powers. Such checking of abuse of powers is doctrine of check and balance.
Meaning
It is the theory of governmental power and functions whereby each of government has the ability to counter the actions of any branch, so that no single branch can control the entire government.
Doctrine of Check and Balance under USA constitution
Those, who framed American constitution, were already influenced doctrine of separation of powers and doctrine of check and balance. Therefore, they made American political setup the best example of association between doctrine of separation of powers and that of check and balance. Following example elaborate such association.
(i) Legislation
Congress makes and enacts laws in United states of America while American supreme court possesses jurisdiction under judicial review to review whether such laws are in accordance to American constitution and other present laws or not. Thus, judicial review is a check on legislative powers of American Congress.
(ii) Judicial Setup
American congress establishes American federal courts and decides number of justices in American supreme court. However, American congress has no power to setup American supreme courts. This reveals that there is some check and balance between powers of American congress and those of American judiciary.
(iii) Ratification of Treaties
American Senate possesses power to ratify treaties. However, American President can get treaties ratified through specific majority of House of Representatives. In the same way, American Supreme Court has jurisdiction under judicial review to review such ratification whether such treaties are according to American Constitution and law or not. This shows that there exist a system of check and balance as far as ratification of treaties is concerned.
(iv) Taxes and Budget
American congress has power to impose taxes, passes budget and borrow loans. ON the other hand, American Supreme Court possesses jurisdiction under judicial review to see whether laws are constitutional or not. These powers reveal that there exist a system of check and balance in America.
(v) Impeachment and Removal
In American Congress, House of Representatives has power to impeach while Senate has power to remove executive and judicial officers. In addition to this, American Chief Justice presides over American Senate during a president’s impeachment trial. This is an example of check and balance in respect of impeachment and removal.
(vi) Equality Among three Branches of American Government
Initially, it was considered that legislative and executive were dominant over American judiciary in United States of America. But jurisdiction under judicial review has brought American judiciary on equal footings to other two branches. Such equality among three branches of American government is another example of check and balance.
Declaration of War
American Congress has power to declare war, but American judiciary possesses jurisdiction for determination of law as far as disposition of prisoners is concerned. This indicates system of check and balance between American Congress and judiciary.
Final Analysis
The scheme of checks and balance in the constitution works in the manner that though a department is entrusted with all its powers, yet their exercise is hared with another department in some important respect.