Constitutionally Enshrined Checks and Balances Part 1

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As I had mentioned in an earlier installment of this series on “Checks and Balances,” the empirical literature has shown that Parliamentary systems appear to have an advantage over their presidential counterparts. Among the works cited were McManus and Ozkan (2017). The duo’s work reconfirmed the Parliamentary system’s superior performance on key economic indicators such as inflation, growth, and (reducing) inequality.

But McManus and Ozkan are not alone. Mainwaring and Shugart (1997)—while acknowledging the ostensibly inherent advantages of Parliamentary systems— underscored the roles played by institutional factors to mitigate the harmful tendencies of presidential systems. They wrote:

“Presidential systems can be designed to function more effectively than they usually have. We have argued that providing the president with limited legislative power, encouraging the formation of parties that are reasonably disciplined in the legislature, and preventing extreme fragmentation of the party system enhance the viability of presidentialism. [The literature] clearly recognizes that not any kind of parliamentarism will do. We make the same point about Presidentialism.”

Clearly, Mainwaring and Shugart acknowledge the general findings regarding the Parliamentary system’s superiority in terms of democratic and constitutional continuity, but they find a point of difference with the idea of wholesale dominance. They make the case (as do McManus and Ozkan) that the minor details do matter. Mainwaring and Shugart eloquently captured this point as follows:

“Even if the parliamentary government is more conducive to stable democracy, much rests on what kind of Parliamentarism and Presidentialism is implemented”

This is a salient point, as it would be a fallacy to not emphasize that the systems are not dichotomous. It would be more advantageous to view the space between Parliamentarism and Presidentialism along a spectrum as opposed to some rigid or binary conceptualization of two disparate systems that are completely detached from each other. Consequently, this demands a more idiosyncratic look at regimes’ designs. For example, as stated earlier, the USA-styled presidential system overcomes the predicted “perils” by instituting robust checks and balances and other fundamental and democracy-preserving institutions.

A Special Look at the World’s Leading Democracy

With the forgoing points in mind, there is value in closely looking at the Checks and Balances built into the world’s leading democracy: The United States of America. This “closer look” is deemed useful for two reasons: (1) In the constitutional reform process, there is already signs that many Belizeans are intrigued at the prospect of becoming a presidential republic, and (2), as stated earlier, the USA is a well-known case study of a presidential regime that has overcome the so-called “perils of Presidentialism” (Linz, 1990).

This Part 1 on Checks and Balances begins with an overview of such structures that provide the Legislature with checks over itself and other branches of government (the Executive and Judiciary). In next week’s Res Publica360, we will look at Belize’s analogous features.

Legislative Checks on Executive: Veto and Counter-Veto Powers

Let us take the counter-veto powers of the Legislature. Under the US Constitution, the President has the authority to “veto” Bills by refusing to sign them into law. The President’s “veto” is a form of Executive check on the Legislature; however, as Article 1(7) of the US Constitution demonstrates, this “check” has its own counterbalance:

“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.”

As the text from the US Constitution shows, it is possible for the” vetoed” Bill to be passed into law, if it is that each House votes for the Bill by at least a two-thirds majority. The quoted clause above is known as the “Presentment Clause,” and, at its core, it presumably seeks to provide sufficient protections against Bills that are disconnected from the will of the people by providing sufficient grounds for consideration by both powers: the Executive and the Legislature. As the US Congress’s official website explains, there is an additional check on this veto power Executive power:

“When Congress is in session, a President who wishes to veto a bill must return the bill to the Chamber in which it originated within ten days (excepting Sundays) of when the bill is presented to him. If Congress approves a bill and sends it to the President, then adjourns before the ten days elapse, the President can prevent the bill from becoming law simply by declining to sign it, sometimes called a ‘pocket veto.’ If the President blocks legislation by pocket veto, Congress cannot later override the veto—instead, the legislature must reintroduce the Bill and enact it again.”

Fundamentally, the President cannot simply “stonewall” a bill by simply not signing it within the ten-day window, as should such time elapse, the bill shall pass as if it was signed. Importantly, while “All Legislative powers” reside with the Legislature, the interplay between the Executive and the houses of Congress provides checks and counterchecks on this power.

This, of course, is not a statement to say that the above is the preferred design. The question that is more relevant is regarding effects and outcomes: The checks achieved on the Executive and Legislature when passing Bills.

The question the reader should ask here (and for each of the examples shown below) is this: How is similar oversight achieved in our system? Is there a mechanism of checks and counter-checks between the Executive and Legislative in a Parliamentary system as found in Belize? This is where we will pick up in the next Res Publica360.

Legislative Checks on Executive: Appointment of Members of the Executive

Returning to the USA example, the Legislature, via the Senate, has yet another oversight function over the Executive: The consenting to official appointments. The US Constitution’s Article 2(1) puts this oversight in the hand of its Senate:

“He [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.”

We saw this (the “Appointments Clause”) in action a few years ago when the (at the time of writing) current Secretary of State Anthony Blinken’s approval was approved by an overwhelming majority of US Senators—78 votes in favor and only 22 against.

Now it must be stated that the Appointments Clause has not been without its own legal controversies and debates, particularly over the distinction between principal and “inferior” officers and where Congress’s power begins and ends in this regard. However, such a discussion is beyond the scope of this work. Here, it is sufficient to say that the Judiciary plays a role in this Check and Balance component by providing judicial rulings and interpretations that inform practice.

Again, how is the similar “effect” achieved in our system? Does the legislature have any real oversight in the appointments of ministers and/or other executive or the Courts members?

Legislative Checks on Executive: Budget and Accountability

Another area that the Legislature exercises oversight is regarding the approval of expenditure and revenues (the Budget) as well as how those authorized spending are managed. While this function is expounded upon and operationalized by various pieces of legislation—such as the Budget and Accounting Act of 1921 that, inter alia, gives life to the General Accounting Office—the US Constitution explicitly provided for this check and balance mechanism at Article 1(9):

“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.”

Regular news consumers would recognize this feature of the Legislature’s oversight powers, as this is the bedrock of the fairly regular spending debates that have been known to result in deadlocks that have triggered or threatened government shutdowns (or more formally, “Funding Gaps”). Where such funding gaps occur, the lack of authorized appropriations would lead to non-essential (discretionary) departments being unable to pay workers, and given certain laws, those workers may have to be temporarily sent home or asked to continue working without pay.

Of course, looking at “government shutdowns” in the USA may signal that maybe this is a design worth avoiding. It has been debated whether this characteristic of the USA’s check and balance apparatus is truly helpful, as, at times, extreme partisan-political divide can result in such stalemates that can have knock-on effects on the larger macroeconomy.

Conversely, the opposite extreme is what exists in Belize, where such lock jams are likely to never occur and thus spending and debt levels have been allowed to increase over the years with little Constitutionally-embedded means to pause an Appropriations Bill. The Senate, for its part, is explicitly limited in its powers to delay Money Bills, which includes the Appropriations Bill. Furthermore, because in a Parliamentary system, the Executive is derived from the Majority in the House of Representatives, then the “funding gap” phenomenon is structurally an unlikely occurrence.

Actually, given that such a “funding gap” in a Parliamentary system is so rare that when it does occur, it is often treated as a type of “Confidence” vote in the Prime Minister, a matter to which we shall return later.

Legislative Checks on Itself: Consent of Both Houses on Bills

 There is merit in us also looking at how the Legislature checks itself. This is achieved by the fact that Bills must be approved by both the Upper and Lower houses of Congress. This feature is established at Article 1(7), and makes no general qualifications, save only for the so-called “Origination Clause” that has to do with Bills for raising revenues, which essentially (and for historical reasons) place the power to “originate” such bills with the Lower House. The Senate could, however, propose or make amendments.

A similar structure exists in Belize, with the Belize Constitution expressly limiting “Money Bills” to the purview of the Lower House.

Belize’s Legislature is likewise bicameral in nature, but as will be discussed later, it is better described as having bicameral asymmetry between both houses, with the Lower House clearly having more power than the upper chamber. Section 79 of the Belize Constitution does set it such that the Upper House can delay a Bill, but if there is enough persistence and patience, the Senate cannot completely stop a Bill from proceeding. We will discuss this in more details in later installments in this series.

Legislative Checks on Judiciary: Power to Impeach Judges

Lastly, the Legislative Branch also has some oversight functions that are relevant to the judiciary. We had already discussed that appointments of judges are to be consented to by the US Senate; however, it must be noted that there is also the power to impeach said justices: “The Senate shall have the sole Power to try all Impeachments.” This function is best articulated by the US Congress:[1]

“The Constitution confers upon Congress the power to impeach and thereafter remove from office the President, Vice President, and other federal officers—including judges—on account of treason, bribery, or other high crimes and misdemeanors. In exercising this power, the House and the Senate have distinct responsibilities, with the House determining whether to impeach and, if impeachment occurs, the Senate deciding whether to convict the person and remove him or her from office.”

As has been the running question throughout this column, is this an “outcome” achieved in our system? What is the Parliamentary equivalent of this type of oversight by the Legislature over the Judiciary? These are the type of considerations we will be making as we proceed in this Check and Balance series.

References:

  1. Richard McManus and F Gulcin Ozkan, “Who does better for the economy? President versus Parliamentary Democracies,” University of York, (2017), https://www.york.ac.uk/media/economics/documents/discussionpapers/2017/1703.pdf (Accessed February 26, 2023).
  • Juan Linz, “Perils of Presidentialism,” Journal of Democracy, (1990).

[1] Constitution Annotated Analysis and Interpretation: Overview of Impeachment, https://constitution.congress.gov/browse/essay/artI-S2-C5-1/ALDE_00000030/

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