On Sun, Oct 28, 2018 at 12:19 AM Alice Walker <[email protected]> wrote:

checksandbalances-main1.docx

Home >Business & Finance homework help >Management homework help >On Sun, Oct 28, 2018 at 12:19 AM Alice Walker <[email protected]> wrote:

The Electoral College is a controversial mechanism of presidential elections that was created by the framers of the U.S. Constitution as a compromise for the presidential election process. At the time, some politicians believed a purely popular election was too reckless, while others objected to giving Congress the power to select the president. The compromise was to set up an Electoral College system that allowed voters to vote for electors, who would then cast their votes for candidates, a system described in Article II, section 1 of the Constitution.

Each state has a number of electors equal to the number of its U.S. senators plus the number of its U.S. representatives. Currently, the Electoral College includes 538 electors, 535 for the total number of congressional members, and three who represent Washington, D.C., as allowed by the 23rd Amendment. The electors of each state meet in their respective state capitals to officially cast their votes for president and vice president. These votes are then sealed and sent to the president of the Senate, who opens and reads the votes in the presence of both houses of Congress.

Most of the time, electors cast their votes for the candidate who has received the most votes in that particular state. Some states have laws that require electors to vote for the candidate that won the popular vote, while other electors are bound by pledges to a specific political party. However, there have been times when electors have voted contrary to the people's decision, and there is no federal law or Constitutional provision against it.

Faithless electors - Over 22 occasions, a total of 179 electors have not cast their votes for President or Vice President as prescribed by the legislature of the state they represented

Court Structure

Supreme Court

The Supreme Court is the highest court in the United States. Article III of the U.S. Constitution created the Supreme Court and authorized Congress to pass laws establishing a system of lower courts. In the federal court system’s present form, 94 district level trial courts and 13 courts of appeals sit below the Supreme Court.

Judges of Supreme Court

The Supreme Court is led by one justice, called the Chief Justice of the United States. The other eight justices are known as Associate Justices. Justices are nominated by the President and confirmed by the Senate. Once confirmed, justices serve for life.

Courts of Appeal

There are 13 appellate courts that sit below the U.S. Supreme Court, and they are called the U.S. Courts of Appeals. The 94 federal judicial districts are organized into 12 regional circuits, each of which has a court of appeals.

District Courts

The nation’s 94 district or trial courts are called U.S. District Courts. District courts resolve disputes by determining the facts and applying legal principles to decide who is right.

Constitutional Amendment Process

The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register. Neither Article V of the Constitution nor section 106b describe the ratification process in detail. The Archivist and the Director of the Federal Register follow procedures and customs established by the Secretary of State, who performed these duties until 1950, and the Administrator of General Services, who served in this capacity until NARA assumed responsibility as an independent agency in 1985.

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. The original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.

The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures or the state calls for a convention, depending on what Congress has specified. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States).

Friedrich Nietzsche

Friedrich Wilhelm Nietzsche was a German philosopher, cultural critic, composer, poet, philologist, and a Latin and Greek scholar whose work has exerted a profound influence on Western philosophy and modern intellectual history.

“Everything the State says is a lie, and everything it has it has stolen.”― Friedrich Nietzsche (presumably referring to Germany of 1800s)

Additional checks

1. FEDERALISM – EXAMINED SEPARATELY

2. We the people – the power to vote and to be in Juries, bear arms, no taxation without representation, democracy etc etc

3. Media – speaking truth to power (first amendment)

Those four little words comprise a powerful expression.

Coined by the Quakers in the 1950’s, “speaking truth to power” is certainly not a new way of taking a stand and mobilizing society around change.

“It is a powerful nonviolent challenge to injustice and unbridled totalitarian forces, often perpetuated by government, sometimes not,” says Judith Sherwin, Attorney at Law, Adjunct Professor, Loyola School of Law. “Sir Thomas More did it at the cost of his life when he spoke truth to power against King Henry VIII; Martin Luther King Jr. did it at the cost of his freedom when he ended up in the Birmingham jail and eventually at the cost of his life.”

Speaking truth to power is a non-violent political tactic, employed by dissidents against the received wisdom or propaganda of governments they regard as oppressive, authoritarian or an ideocracy. The phrase may have originated with a pamphlet 'Speak truth to power: a Quaker Search for an Alternative to Violence', published in 1955. Speak Truth To Power is also the title of a global Human Rights initiative under the auspices of Robert F. Kennedy Human Rights. Practitioners who have campaigned for a more just and truthful world have included Nelson Mandela, Archbishop Desmond Tutu, the Dalai Lama and Elie Wiesel.

4. Civic organizations /Civil Society

Civil society is the "aggregate of non-governmental organizations and institutions that manifest interests and will of citizens". Civil society includes the family and the private sphere and is referred to as the "third sector" of society, distinct from government and business. By other authors, "civil society" is used in the sense of 1) the aggregate of non-governmental organizations and institutions that manifest interests and will of citizens or

2) individuals and organizations in a society which are independent of the government

We consider those that litigate on issues concerning civil rights eg ACLU

For almost 100 years, the ACLU has worked to defend and preserve the individual rights and liberties guaranteed by the Constitution and laws of the United States.

Example:

Masterpiece Cakeshop v. Colorado Civil Rights Commission

UPDATED: JUNE 4, 2018

U.S. Const. amend. I

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018), was a case in the Supreme Court of the United States that dealt with whether owners of public accommodations can refuse certain services based on the First Amendment claims of free speech and free exercise of religion, and therefore be given an exemption from laws ensuring non-discrimination in public accommodation — in particular, by refusing to provide creative services, such as making a wedding cake for the marriage of a same-sex couple, on the basis of the owner's religious beliefs.

The case dealt with Masterpiece Cakeshop, a bakery in Lakewood, Colorado, which refused to provide a wedding cake to a gay couple based on the owner's religious beliefs. The Colorado Civil Rights Commission, evaluating the case under the state's anti-discrimination law, the Colorado Anti-Discrimination Act, found the bakery discriminated against the couple and issued specific orders for the bakery to follow. Following appeals within the state that affirmed the Commission's decision, the bakery took the case to the U.S. Supreme Court.

In a 7-2 decision, the Court ruled on narrow grounds that the Commission did not employ religious neutrality, violating Masterpiece owner Jack Phillips' rights to free exercise, and reversed the Commission's decision. The Court did not rule on the broader intersection of anti-discrimination laws, free exercise of religion, and freedom of speech, due to the complications of the Commission's lack of religious neutrality

The Court issued its ruling on June 4, 2018, ordering a reversal of the decision made by the Colorado Civil Rights Commission. The majority opinion was written by Justice Anthony Kennedy, and joined by Chief Justice John Roberts, and Justices Samuel Alito, Stephen Breyer, Elena Kagan and Neil Gorsuch. The opinion stated that although a baker, in his capacity as the owner of a business serving the public, "might have his right to the free exercise of his religion limited by generally applicable laws", a State decision in an adjudication “in which religious hostility on the part of the State itself” is a factor violates the "State’s obligation of religious neutrality" under the Free Exercise Clause of the First Amendment to the Constitution.[25] Kennedy's opinion stated that the Commission's review of Phillips' case exhibited hostility towards his religious views. The Commission compared Phillips' religious beliefs to defense of slavery or the Holocaust. Kennedy found such comparisons "inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law"

5. Parliamentary/Congressional oversight –

Congressional oversight is oversight by the United States Congress over the Executive Branch, including the numerous U.S. federal agencies. Congressional oversight includes the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation. Congress exercises this power largely through its congressional committee system. Oversight also occurs in a wide variety of congressional activities and contexts. These include authorization, appropriations, investigative, and legislative hearings by standing committees; specialized investigations by select committees; and reviews and studies by congressional support agencies and staff.

Congress’s oversight authority derives from its “implied” powers in the Constitution, public laws, and House and Senate rules. It is an integral part of the American system of checks and balances.

Although the U.S. Constitution grants no formal, express authority to oversee or investigate the executive or program administration, oversight is implied in Congress’s array of enumerated powers. The legislature is authorized to appropriate funds; raise and support armies; provide for and maintain a navy; declare war; provide for organizing and calling forth the national guard; regulate interstate and foreign commerce; establish post offices and post roads; advise and consent on treaties and presidential nominations (Senate); and impeach (House) and try (Senate) the President, Vice President, and civil officers for treason, bribery, or other high crimes and misdemeanors. Reinforcing these powers is Congress’s broad authority “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”.

The authority to oversee derives from these constitutional powers.

Key Points

Congressional oversight refers to oversight by the United States Congress of the Executive Branch, including the numerous U.S. federal agencies. Congressional oversight refers to the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation.

Congress’s oversight authority derives from its implied powers in the Constitution, public laws, and House and Senate rules. It is an integral part of the American system of checks and balances.

Congress could not reasonably or responsibly exercise these powers without knowing what the executive was doing; how programs were being administered, by whom, and at what cost; and whether officials were obeying the law and complying with legislative intent.

Oversight also is derived from the many and varied express powers of the Congress in the Constitution. Congress could not reasonably exercise its powers without knowing what the executive was doing; how programs were being administered, by whom, and at what cost.

Key Terms

congressional oversight: Congressional oversight refers to oversight by the United States Congress of the Executive Branch, including the numerous U.S. federal agencies.

implied powers: They are those powers authorized by a legal document (from the Constitution) which, while not stated, seem to be implied by powers expressly stated.

enumerated powers: The enumerated powers are a list of items found in Article I, Section 8 of the U.S. Constitution that set forth the authoritative capacity of Congress. In summary, Congress may exercise the powers that the Constitution grants it, subject to explicit restrictions in the Bill of Rights and other protections in the Constitution.

KEY TAKEAWAYS

Key Points

The authority to oversee the executive comes from the constitutional powers. Congress could not carry them out reasonably or responsibly without knowing what the executive is doing.

Reinforcing these oversight powers is Congress’s broad authority to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, all other powers vested by this Constitution in the government, or in any Department or Officer in the government.

Besides these general powers, numerous statutes direct the executive to give information to or consult with Congress.

Oversight occurs through a wide variety of congressional activities and avenues. Some of the most publicized are the comparatively rare investigations by select committees into major scandals or into executive branch operations gone awry.

Two examples of Congressional Investigations

Hurricane Katrina (2005-2006)

According to Pitney, the congressional investigation of the government's response to Hurricane Katrina produced an important and evenhanded report instead of the partisan witch hunt it easily could have become.

9/11 (2001-2004)

Hearings on the 9/11 attacks, the findings of the congressionally-created 9/11 Commission, and how the government responded to them were among the most important of recent decades, according to David Schultz of Hamline University.

Others that Do NOT APPEAR IN US CONSTITUTION AND TAKEN FROM SA CONSTITUTION

6. Public protector

South Africa's Public Protector is one of six independent state institutions set up by the country's Constitution to support and defend democracy.

The office of the Public protector has been faced with harsh criticism by parliament specifically by the majority party for requesting an increase of R200m in the budget allocation for additional resources. With the justice portfolio committee chairman Mathole Motshekga being critical of the budget and strategic presentation presented by Adv. Thuli Madonsela.

During the budget speech of 2015 the office of the Public Protector was allocated a total budget for 2015/16 of R 246.1 million an increase of R 60 million, as opposed to the increase of R 200 million initially requested. With R 15 million going to the employment of additional investigators and the retention of the 70 investigator who were previously appointed on contract.

Mandate

The Public Protector receives its mandate from the Public Protector Act of 1994. The Public Protector is one of six State Institutions Supporting Democracy in South Africa. These institutions are independent of the government, subject only to South Africa's Constitution and the law, and report annually to Parliament.

The preamble of the Public Protector Act states, in part:

The Constitution of the Republic of South Africa ... provides for the establishment of the office of Public Protector to investigate matters and to protect the public against matters such as maladministration in connection with the affairs of government, improper conduct by a person performing a public function, improper acts with respect to public money, improper or unlawful enrichment of a person performing a public function and an act or omission by a person performing a public function resulting in improper prejudice to another person.

The Act also gives the Public Protector the authority to order other state institutions take appropriate remedial action against any impropriety or prejudice made by government.

Any aggrieved complainant may lodge a complaint to the office provided that it falls within powers of the Public Protector in terms of the Public Protector act 23 of 1994.The Public Protector may investigate and take the appropriate remedial action on his/her findings.

Example

. Public Protector Adv. Thuli Madonsela''s Nkandla Report, titled ‘Secure in Comfort’. The report is about her investigation into allegations of impropriety and unethical conduct relating to the installation and implementation of security measures by the Department of Public Works at the private residence of President Jacob Zuma, Nkandla in KwaZulu-Natal.

He was ordered to repay $25 000

7. Commissions of enquiry

Powers and functions of President

84. (1)

The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive.

(2) The President is responsible for

(f) appointing commissions of inquiry;

The state is not obligated to enact the recommendations of a commission of inquiry at all.

In fact, it is not obliged to even release the findings of them.

Once the reports are submitted to the president (or the premier, as the case may be), it is within his sole discretion as to how to proceed with them.

Ultimately, the choice to release a commission report and implement the findings is a political one.

It is clear from the above examples that commissions, although created to promote justice, do not seem to be serving their intended purpose.

Aside from being extremely political in nature, they tend to be expensive long-winded exercises with an end result that does not benefit the parties involved.

The fact that these commission recommendations are not legally enforceable makes them somewhat of a toothless dog, and they end up being more of a nice-to-have to redress past injustices, than a genuine, effective means for social relief.

8. Different amendment provisions for different sections of the constitution

· Section 74 of the Constitution provides that a bill to amend the Constitution can only be passed if at least two-thirds of the members of the National Assembly (that is, at least 267 of the 400 members) vote in favour of it.

· If the amendment affects provincial powers or boundaries, or if it amends the Bill of Rights, at least six of the nine provinces in the National Council of Provinces must also vote for it.

· To amend section 1 of the Constitution, which establishes the existence of South Africa as a sovereign, democratic state, and lays out the country's founding values, would require the support of three-quarters of the members of the National Assembly. There have been seventeen amendments since 1996.

9. Whistleblowers - A whistleblower (also written as whistle-blower or whistle blower) is a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organization that is either private or public.

10. Prosecutorial Independence

A prosecutor is a legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal trial against an individual accused of breaking the law. Typically, the prosecutor represents the government in the case brought against the accused person.

Judicial independence is accepted in most countries but in some countries there is also prosecutorial independence. That means that the prosecution department is independent of the executive branch of government

Europe

RESPONSIBILITIES OF PUBLIC PROSECUTORS IN ENSURING DUE PROCESS AND THE RULE OF LAW

This is an area where it is perhaps easiest to set out general norms applicable to all prosecution systems since there are certain basic principles which are fundamental to all systems. As EU Recommendation Rec(2000)19 points out:

“In all criminal justice systems, public prosecutors:

- decide whether to initiate or continue prosecutions;

- conduct prosecutions before the courts;

- may appeal or conduct appeals concerning all or some court decisions”

Recommendation Rec(2000)19 also refers to certain functions of public prosecutors which exists in some systems but not in others, including implementing national crime policy, conducting, directing or supervising investigations, ensuring that victims are effectively assisted, deciding on alternatives to prosecution, and supervising the execution of court decisions.

The Venice Commission Report on the independence of the prosecution service also lays emphasis on the qualities of prosecutors, in particular at paragraphs 14 to 19 of the Report.

Having referred to the importance of the prosecutor acting to a higher standard than a litigant in a civil matter because he or she acts on behalf of society as a whole and because of the serious consequences of criminal conviction, and having referred to duties to act fairly and impartially, as well as the duty to disclose all relevant evidence to the accused, the Commission points to the necessity to employ as prosecutors suitable persons of high standing and good character, having qualities similar to those required of a judge, and to require that suitable procedures for appointment and promotion are in place.

The Venice Commission also emphasizes the necessity to secure proper tenure and appropriate arrangements for promotion, discipline and dismissal which will ensure that a prosecutor cannot be victimized on account of having taken an unpopular decision.

The Venice Commission goes on to talk about political interference in prosecution. The Report points out that if modern western Europe has largely avoided the problem of abusive prosecution in recent times this is largely because mechanisms have been adopted to ensure that improper political pressure is not brought to bear in the matter of criminal prosecution. The Commission points out that in totalitarian states or in modern dictatorships criminal prosecution has been and continues to be used as a tool of repression and corruption.

https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-UDT(2011)008-e

The South African Constitution

The final Constitution is somewhat ambiguous. On the one hand, it dictates that “[n]ational legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”, while on the other, it regulates that the “Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority”.

Namibia

Highstead Entertainment (Pty) Ltd t/a “The Club” v Minister of Law and Order and Others (Namibia)

l. In terms of the Namibian Constitution, the Prosecutor-General is totally independent as far as his/her mandate to prosecute is concerned

http://www.kas.de/upload/auslandshomepages/namibia/Independence_Judiciary/horn2.pdf

USA

When a special counsel is appointed he is independent of the executive ie the president is unable to interfere with his activities

Morrison v. Olson, 108 S. Ct. 2597 (1988)

The Court held that the independent counsel provision of the Ethics in Government Act did not violate the principle of separation of powers because it did not increase the power of one branch at the expense of another. Instead, even though the President cannot directly fire an Independent Counsel, the person holding that office was still an officer of the Executive branch and not under the control of either the U.S. Congress or the courts.

Crown Prosecution Service

The Crown Prosecution Service (CPS) prosecutes criminal cases that have been investigated by the police and other investigative organisations in England and Wales. The CPS is independent, and we make our decisions independently of the police and government.

Our duty is to make sure that the right person is prosecuted for the right offence, and to bring offenders to justice wherever possible.

The CPS:

decides which cases should be prosecuted;

determines the appropriate charges in more serious or complex cases, and advises the police during the early stages of investigations;

prepares cases and presents them at court; and

provides information, assistance and support to victims and prosecution witnesses.

Prosecutors must be fair, objective and independent. When deciding whether to prosecute a criminal case, our lawyers must follow the Code for Crown Prosecutors. This means that to charge someone with a criminal offence, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction, and that prosecuting is in the public interest.

SOME OF THE CHECKS AND BALANCES IN THE USA CONSTITION

Legislative Branch

Check	Reference	Example
• Checks on the Executive
Impeachment power (House)	The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” — U.S. Constitution, Article II, section 4	To date, the Senate has conducted formal impeachment proceedings 19 times, resulting in 7 acquittals, 8 convictions, 3 dismissals, and one resignation with no further action. only two U.S. Presidents have been impeached by the House of Representatives. The first was Andrew Johnson, in 1868, for dismissing Edwin M. Stanton as secretary of war and the second was Bill Clinton, in 1998 for charges of lying under oath in regards to sexual relations with a White House intern. Both presidents were acquitted in trials that were held by the Senate because the two-thirds majority votes needed to convict them, were not reached. This meant both presidents remained in office and served the remainder of their terms.
o Trial of impeachments (Senate)	"the Senate shall have the sole Power to try all Impeachments .... [but] no person shall be convicted without the Concurrence of two-thirds of the Members present" (Article I, section 3).
o Selection of the President (House) and Vice President (Senate) in the case of no majority of electoral votes	“…and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President…” — U.S. Constitution, Article II, section 1, clause 3	The contested 1876 presidential election between Republican Rutherford B. Hayes of Ohio and Democrat Samuel J. Tilden of New York was the last to require congressional intervention. Tilden won the popular vote and the electoral count. But Republicans challenged the results in three Southern states, which submitted certificates of election for both candidates. While the Constitution requires the House and Senate to formally count the certificates of election in joint session, it is silent on what Congress should do to resolve disputes. In January 1877, Congress established the Federal Electoral Commission to investigate the disputed Electoral College ballots. The bipartisan commission, which included Representatives, Senators, and Supreme Court Justices, voted along party lines to award all the contested ballots to Hayes—securing the presidency for him by a single electoral vote.
o May override Presidential vetoes	Article 1 Section 7 Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law	override of a veto - The process by which each chamber of Congress votes on a bill vetoed by the President. To pass a bill over the president's objections requires a two-thirds vote in each Chamber. Historically, Congress has overridden fewer than ten percent of all presidential vetoes.


o Senate approves departmental appointments	The Appointments Clause is part of Article II, Section 2, Clause 2 and [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.	In the past 100 years, the Senate has rejected three nominations on a recorded vote On June 19, 1959, by a dramatic 46-to-49 roll-call vote, the Senate rejected President Dwight Eisenhower's nomination of Admiral Lewis Strauss to be secretary of commerce. Strauss was a seasoned administrator who expected quick approval to this essentially noncontroversial post.
o Senate approves treaties and ambassadors	Article 2 section 2 He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.	In present practice the executive branch usually negotiates treaties. A signed treaty is then referred to the Senate Foreign Relations Committee. After the treaty is approved in committee, it is voted on by the entire US Senate. "Ratification" takes place only when the treaty parties formally exchange instruments of ratification. The United States increasingly uses "Executive Agreements" in place of treaties. Executive Agreements may either be "Presidential" Executive Agreements or "Congressional" Executive Agreements. Note that although the United States does not consider an "Executive Agreement" to be a treaty, under public international law Executive Agreements are considered treaties.
o Approval of replacement Vice President	25th amendment Section 2: Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.	This procedure has been implemented twice since the amendment came into force. The first instance occurred in 1973 following the October 10 resignation of Spiro Agnew, when Gerald Ford was nominated by President Richard Nixon and confirmed by Congress. The second occurred 10 months later following Ford's August 9, 1974 accession to the presidency upon Nixon's resignation, when Nelson Rockefeller was nominated by President Ford and confirmed by Congress
o Power to declare war	Article 1 section 8 clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;	USA declarations of WAR Declaration of war with Great Britain (passed June 17, 1812) Declaration of war with Mexico (passed May 12, 1846 Declaration of war with Spain (passed April 25, 1898) Declaration of war with Germany (passed April 6, 1917) Declaration of war with Austria-Hungary (passed Dec. 7, 1917) Declaration of war with Japan (passed Dec. 8, 1941) Declaration of war with Germany (passed Dec. 11, 1941) Declaration of war with Italy (passed Dec. 11, 1941) Declaration of war with Bulgaria (passed June 4, 1942) Declaration of war with Hungary (passed June 4, 1942) Declaration of war with Rumania (now Romania; passed June 4, 1942) In other instances, the United States has engaged in extended military combat that was later authorized by Congress. On March 21, 2011, a number of lawmakers expressed concern that the decision of President Barack Obama to order the U.S. military to join in attacks of Libyan air defenses and government forces exceeded his constitutional authority because the decision to authorize the attack was made without Congressional permission. Obama explained his rationale in a two-page letter, stating that as commander in chief, he had constitutional authority to authorize the strikes, which would be limited in scope and duration, and necessary to prevent a humanitarian disaster in Libya.
o Power to enact taxes and allocate funds	Power of the Purse “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.”— U.S. Constitution, Article I, section 7, clause 1 “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” — U.S. Constitution, Article I, section 9, clause 7	If Congress and the US president fail to agree on a budget, the government shuts down, meaning certain federal departments will stop working to capacity. An estimated one million civilian federal employees cannot work, and certain government services will be affected. Government shutdowns are regular occurrences in the USA
o President must, from time-to-time, deliver a State of the Union address	He shall from time to time give to Congress information of the State of the Union and recommend to their Consideration such measures as he shall judge necessary and expedient. — Article II, Section 3 of the U.S. Constitution	The State of the Union Address is an annual message presented by the President of the United States to a joint session of the United States Congress, except in the first year of a new president's term. The message includes a budget message and an economic report of the nation, and also allows the President to propose their outlined legislative agenda (for which the cooperation of Congress is needed) and national priorities.

Legislative checks on the judiciary
o Senate approves federal judges	Article 2 section 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.	We have the current example of Judge Brett Kavanaugh who is to replace judge Kennedy
Impeachment power (House)	The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. Article I, Section 2, Clause 5	14 July 22, 1986 Harry E. Claiborne Judge (District of Nevada) Tax evasion Removed on October 9, 1986
Trial of impeachments (Senate)	The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Article I, Section 3, Clause 6
Power to initiate constitutional amendments	Article V (Article 5 - Mode of Amendment) The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution	There are 27 amendments
Power to set courts inferior to the Supreme Court	Article Three section 1 The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.	ructure of the federal courts is roughly pyramidal. At the top of the pyramid is the Supreme Court. The Supreme Court is the highest court in the federal system. The Supreme Court is often called "the highest court in the land" because it hears appeals from state courts as well as federal courts. The Supreme Court has nine justices and begins its term on the first Monday in October of each year. The Supreme Court hears most cases on appeal. Litigants wishing to appeal their cases from a state supreme court or from a federal Court of Appeals must file for a "writ of certiorari" glossary for 'certiorari'. If four of the nine Justices agree to issue a writ, the Court will hear the case. The Court also has limited "original jurisdiction" in some cases. The Federal Courts of Appeal are the middle part of the pyramid. The Courts of Appeal are divided into twelve different regions, often known as "circuits". These courts are often known as "circuit courts". Eleven of the twelve circuit courts handle cases from different states -- for example, the Eleventh Circuit Court of Appeals in Atlanta handles cases from Alabama, Florida, and Georgia. The twelfth circuit court is the Court of Appeals for the District of Columbia, and is located in Washington. Additionally, there is also a United States Court of Appeals for the Federal Circuit, which hears certain specialized cases. The Federal District Courts are the lowest part of the pyramid. There are 94 judicial districts across the country, including judicial districts in the District of Columbia, Puerto Rico, the Virgin Islands, the Northern Mariana Islands, and Guam.
Power to set jurisdiction of courts	Congress may define the jurisdiction of the judiciary through the simultaneous use of two powers. First, Congress holds the power to create (and, implicitly, to define the jurisdiction of) federal courts inferior to the Supreme Court (i.e. Courts of Appeals, District Courts, and various other Article I and Article III tribunals). This court-creating power is granted both in the congressional powers clause (Art. I, § 8, Cl. 9) and in the judicial vesting clause (Art. III, § 1). Second, Congress has the power to make exceptions to and regulations of the appellate jurisdiction of the Supreme Court. This court-limiting power is granted in the Exceptions Clause (Art. III, § 2)
o Power to alter the size of the Supreme Court	the original U.S. Constitution did not set the number of justices on the Supreme Court. Judiciary Act of 1869 officially set the number at 9, and it has not budged since.	Therefore, it was up to Congress to decide, and in 1801, it set the number at five Congress increased the number to seven in 1807, to nine in 1837, then to 10 in 1863.
• Checks on • Checks on the Legislature - because it is bicameral, the Legislative branch has a degree of self-checking. the Legislature
o Bills must be passed by both houses of Congress	Article 1 - The Legislative Branch Section 7 - Revenue Bills, Legislative Process, Presidential Veto All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States;
o House must originate revenue bills	All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Article 1 - The Legislative Branch Section 7 - Revenue Bills,
o Neither house may adjourn for more than three days without the consent of the other house	Article I, Section 5 of the Constitution states the following: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days	August 6th, 2017- fox news There’s a paradox on Capitol Hill right now and it requires some ‘splaining. Congress isn’t in session. But it is. Yet nobody’s here. Lawmakers say they want to be in Washington. But they really don’t. So they aren’t. Yet they kind of are. And so even though the House and Senate aren’t in session, they’re meeting every three days for the next month. Still, Congress is now taking its traditional August recess. But the chambers didn’t adjourn. So while lawmakers insist they’d rather stay in Washington and solve the nation’s problems, they insisted on going home. An “adjournment resolution” wouldn’t pass right now in either chamber. So Congress didn’t adjourn. But everyone left, even if lawmakers never voted to abandon Washington. This is the parliamentary enigma that now envelopes Washington. Is Congress really or really not on recess? Yes and no.
o All journals are to be published	Article 1 SECTION 5. Clause 3. Each House shall keep a Journal of its Proceedings and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.
Expulsion of a Member of Congress.	Article I, Section 5 of the United States Constitution provides that "Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.	In the entire history of the United States Congress, 20 Members have been expelled: 15 from the Senate and 5 from the House of Representatives (of those, one member's expulsion, William K. Sebastian of Arkansas, was posthumously reversed). Censure has been a much more common form of disciplinary action in Congress over the years, as it requires a much lower threshold of votes to impose.

Executive Branch

• Checks on the Legislature

o Veto power	Article 1 Section 7 Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
o Vice President is President of the Senate	Article I, Section 3 Clause 4: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. Clause 5: The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.	As of February 28, 2018, there have been 264 tie-breaking votes cast by 36 vice presidents while 12 others did not cast any votes. February 7, 2017 PN37 (Nomination of Elisabeth Prince DeVos, of Michigan, to be Secretary of Education[43][44]) Yea: 51–50 Nomination confirmed.
o Commander in chief of the military	Article II, Section 2, Clause I of the Constitution, the President of the United States is “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”
o Recess appointments	Article II, Section 2, Clause 3 The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
o Emergency calling into session of one or both houses of Congress	Article II, Section 3 of the Constitution provides that the President may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper.	The last time the House was plucked out of summer recess was to pass an emergency spending bill in 2005, following Hurricane Katrina.
o May force adjournment when both houses cannot agree on adjournment	Article II, Section 3 of the Constitution provides that the President may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper.	o President has ever exercised his power to adjourn the houses, largely because there has never really been cause to do so.
o Compensation cannot be diminished	Article 1 SECTION 6. Clause 1 The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place ARTICLE 2, SECTION 1 Clause 7. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them

Checks on the Judiciary
o Power to appoint judges	Appointments Clause: Article II, Section 2, clause 2 grants the President the power to “appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States [except those whose positions are not otherwise already provided for in the Constitution, and] Congress may by Law vest the Appointment of such inferior Officers…in the President alone.” In other words, the President is given broad appointing powers, and the powers not granted the President, which remain with Congress, may be vested in the President by Congressional act.	Judge Kavanaugh
o Pardon power	Article II, Section 2 of the Constitution, which says the president "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."	CAN THE PRESIDENT PARDON HIMSELF? Legal scholars agree that a presidential pardon, once delivered, is valid. The recipient enjoys all the benefits of a pardon, no matter why it was granted. But could the granting of the pardon be a crime in itself? That's being hotly debated. Harvard law professor Alan Dershowitz argues that it's not. It doesn't matter what the president's motive is, and as president he alone gets to decide who is worthy of his me An expungement wipes out any record of a criminal conviction as if it never happened, often sealing the case file. A pardon acknowledges the conviction but removes all punishments for it. Many states have specific procedures for expungements, but in the federal system they're rare 2017 When President Donald Trump announced on Friday that he is pardoning former Maricopa County Sheriff Joe Arpaio, who was convicted on July 31 of contempt of court for continuing use immigration-enforcement tactics that had been found by a judge to be discriminatory, he was taking part in a presidential prerogative that dates back to the earliest days of the United States.
• Checks on the Executive
o Vice President and Cabinet can vote that the President is unable to discharge his duties	25 th Amendment Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.	Has never been used

Judicial Branch

• Checks on the Legislature
o Judicial review	Judicial Review is the power of the US Supreme Court to review laws and actions from Congress and the President to determine whether they are constitutional. This is part of the checks and balances that the three branches of the federal government use in order to limit each other and ensure a balance of power. Judicial review is the fundamental principle of the US system of federal government that all actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary branch. Implied – Marbury v Madison	Many many examples
o Seats are held on good behavior	Remember impeachment of judges
o Compensation cannot be diminished	Article 3 SECTION 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
• Checks on the Executive
o Judicial review	Implied – Marbury v Madison	What is an executive order? In simple terms, an executive order is an official statement by the President, ordering the federal agencies under he oversees how to direct their resources. An executive order is part of a wider range of directives called executive actions. An order is the most formal action – which derive their power from Artcile II of the Constitution. Other actions include presidential memorandums and then proclamations and directives. On January 27, 2017, President Trump signed an executive order that indefinitely suspends the resettlement of Syrian refugees, pauses the overall refugee resettlement program, and temporarily bars noncitizens from seven majority-Muslim nations from entering the United States. The “Protecting the Nation from Foreign Terrorist Entry into the United States” executive order has been the subject of numerous legal challenges. Executive Order 13769, titled Protecting the Nation from Foreign Terrorist Entry into the United States, often referred to as the Muslim ban[1] or the travel ban, was an executive order issued by United States President Donald Trump. Except for the extent to which it was blocked by various courts, it was in effect from 27 January 2017, until 16 March 2017, when it was superseded by Executive Order 13780. Executive Order 13769 lowered the number of refugees to be admitted into the United States in 2017 to 50,000, suspended the U.S. Refugee Admissions Program (USRAP) for 120 days, suspended the entry of Syrian refugees indefinitely, directed some cabinet secretaries to suspend entry of those whose countries do not meet adjudication standards under U.S. immigration law for 90 days, and included exceptions on a case-by-case basis. Homeland Security lists these countries as Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.[2] More than 700 travelers were detained, and up to 60,000 visas were "provisionally revoked Legal challenges to these orders were brought almost immediately after their issuance. From January 28 to 31 almost 50 cases were filed in federal courts. The courts granted temporary relief including multiple temporary restraining orders (TRO) that barred the enforcement of major parts of the executive order.
o Chief Justice sits as President of the Senate during presidential impeachment	Article I, section 3 The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.	Two Chief Justices, Salmon P. Chase and William Rehnquist, have presided over the trial in the Senate that follows an impeachment of the president – Chase in 1868 over the proceedings against President Andrew Johnson and Rehnquist in 1999 over the proceedings against President Bill Clinton. Both presidents were subsequently acquitted.