The Constitution: a framework for government 57Congress to remove the president, vice president, or other “officers of the United
States” (including federal judges) for abuses of power—specifically, “Treason, Bribery,
or other High Crimes or Misdemeanors.” The framers placed this central check with
Congress as part of the overall system of checks and balances.
Through the power of the purse, Congress can punish executive agencies by
freezing or cutting their funding or 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. Congress can also limit the discretion of
judges in other ways, such as by setting federal sentencing guidelines that recommend
a range of years in prison that should be served for various crimes. Even today, the
system of checks and balances is not fixed in stone but evolves according to the
changing political climate.
In addition to these two formal constitutional checks, Congress may limit
presidential power through its legislative powers of lawmaking and oversight.
When Congress is controlled by a different party than the president, such checking
is common; for example, in the last six years of Obama’s presidency, Republicans
in Congress tried to stop much of his agenda. But even under unified government,
as in the first two years of Trump’s presidency, Congress can check presidential
power. Republicans passed stronger sanctions against Russia, investigated
Russian interference in our elections, failed to provide full funding for the wall at
the U.S.-Mexico border, and failed to “repeal and replace” the Affordable Care Act
(Obamacare), all in the face of Trump’s opposition.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. In the end, the Federalist view that the president
needed some protections against the “depredations” of the legislature 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 president does not have any formal check on the courts other than the power
to appoint judges. However, presidents have, at various times, found unconventional
ways to try to influence the courts. For example, Franklin Delano Roosevelt tried
to “pack the Court” by expanding the size of the Supreme Court with justices who
would be sympathetic to his New Deal policies. More recently, George W. Bush
attempted to expand the reach of executive power in the War on Terror by taking
over some functions within the executive branch that the courts had previously
performed, such as defining which suspected terrorists would have legal rights.
However, the Supreme Court struck down some of these policies as unconstitutional
violations of defendants’ due process rights. President Obama changed many of
Bush’s policies, such as harsh interrogation methods and excessive secrecy. But
other Bush-era policies were either more difficult to change than Obama anticipated,
such as the detainment of enemy combatants in the prison at Guantánamo Bay, or
deemed necessary to fight terrorism, such as indefinite detention without trial for
suspected terrorists who were arrested outside combat areas.^21 President Trump has
continued these policies and created other new ones, such as the travel ban aimed atFull_03_APT_64431_ch02_030-069.indd 57 16/11/18 1:34 PM