42 CHAPTER 2|THE CONSTITUTION AND THE FOUNDING
CONGRESSIONAL CHECKS
Congress has two important negative checks on the other two branches: impeach-
ment and the power of the purse. Impeachment was based on the British prac-
tice of removing unpopular or corrupt ministers of the king through a vote of no
confi dence, but the framers made one important change. The president, vice presi-
dent, or other “offi cers of the United States” (including federal judges) could not be
removed for political reasons, but only for abuses of power—specifi cally, “Treason,
Bribery, or other High Crimes or Misdemeanors.”
Through the power of the purse Congress can punish executive agencies by
freezing or cutting their funding or by holding hearings on, investigations of, or
audits of their operations to make sure money is being spent properly. Congress
can also freeze judges’ salaries to show displeasure with court decisions, and it
has the power to limit the issues that federal courts can consider. Even today the
system of checks and balances is not fi xed in stone but evolves according to the
changing political climate.PRESIDENTIAL CHECKS
The framers placed important checks on congressional power as well, and the
president’s most important check on Congress is the veto. Again there was very
little agreement on this topic. The Antifederalists argued that it was “a political
error of the greatest magnitude, to allow the executive power a negative, or in fact
any kind of control over the proceedings of the legislature.” But the Federalists
worried that Congress would slowly strip away presidential powers and leave the
president too weak. Ultimately, the Federalist view won the day. However, the veto
has developed into a major policy-making tool for the president, which is probably
broader than the check against “depredations” envisioned by the framers. The Con-
stitution also gives the president a formal check on the courts through the power to
appoint judges.JUDICIAL REVIEW
The Constitution did not provide the Supreme Court with any formal checks on
the other two branches. Instead, the practice of judicial review—the ability
of the Supreme Court to strike down a law or an executive branch action as
unconstitutional—was established by the Court much later, in the landmark deci-
sion Marbury v. Madison in 1803. While judicial review is not explicitly mentioned
in the Constitution, supporters of the practice point to the supremacy clause, which
states that the “Constitution, and the Laws of the United States which shall be made
in Pursuance thereof... shall be the supreme Law of the Land.”
As Chief Justice John Marshall argued in Marbury v. Madison, in order to
enforce the Constitution as the supreme law of the land, the Court must deter-
mine which laws are “in pursuance thereof.” Critics of judicial review argue
that the Constitution is supreme because it gains its legitimacy from the people,
and therefore elected offi cials—Congress and the president—should be the pri-
mary interpreters of the Constitution rather than the courts. This dispute may
never fully be resolved, but Marshall’s bold assertion of judicial review made the
Supreme Court an equal partner in the system of separate powers and checks and
balances.impeachment A negative or
checking power over the other
branches that allows Congress to
remove the president, vice
president, or other “offi cers of the
United States” (including federal
judges) for abuses of power.
power of the purse The
constitutional power of Congress to
raise and spend money. Congress
can use this as a negative or check-
ing power over the other branches
by freezing or cutting their funding.
judicial review The Supreme
Court’s power to strike down a law
or executive branch action that it
fi nds unconstitutional.