SONIA SOTOMAYOR IS SWORN
in before the Senate Judiciary
Committee at her confi rmation
hearings to become a justice of the
Supreme Court. The president and
the Senate share the appointment
power to the federal courts: the
president makes the nominations,
and the Senate provides its “advice
and consent.”Shared Powers
Along with dividing the exclusive powers among the branches of government,
checks and balances designate some shared powers. These are areas where no
branch has exclusive control. For example, the president has the power to negoti-
ate treaties and make appointments to the federal courts and other government
offi ces, but these executive actions are to be undertaken with the “advice and
consent” of the Senate, which means they were intended to be shared powers. In
the twentieth century these particular powers became executive-centered, with
the Senate providing almost no advice to the president and routinely giving its
consent. However, the Senate still can assert its shared power, as shown by the
Senate’s relatively recent blocking of several of President George W. Bush’s and
President Obama’s lower court nominees.
The war powers, which include decisions about when and how to use military
force, were also intended to be shared but have become executive-dominated pow-
ers. The framers disagreed about who should control the war powers. The ultimate
compromise shows checks and balances at work, with the president serving as com-
mander in chief of the armed forces, while Congress has the power to declare war and
to appropriate the funds to conduct a war. Since very early in the nation’s history, the
president has taken a lead role in the war powers. Presidents have authorized the use
of American troops on hundreds of occasions, but Congress has declared war only
fi ve times. Of these, Congress debated the merits of entering only one war, the War of
- The other “declarations” recognized a state of war that already existed. As the
2003 invasion of Iraq demonstrated, if a president is intent on going to war, Congress
must go along or get out of the way.
However, since the Vietnam War, Congress has tried to redress the imbal-
ance in the war powers in other ways. In 1970, during the Vietnam War, Congress
passed a resolution that prevented any funds from supporting ground troops in
Laos or Cambodia (nations that bordered Vietnam). In the 1980s, Democrats in
Congress prevented President Ronald Reagan from using any appropriated funds
to support the Contra rebels in their fi ght against the Sandinista government in
Nicaragua.^11 These examples show that while the president continues to dominate
the war powers, Congress can assert its power when it has the will—just as it can
by advising the president in treaty negotiations or by withholding approval of the
president’s nominees for appointed positions.
Negative or Checking Powers
The last part of the system of checks and balances is the negative power that the
branches have over one another. These powers are especially important because
they ensure that no single branch dominates the national government.