Monday, August 11, 2025
Third-Party Checks and Balances
When Madison was writing about checks and balances in The Federalist, what he had in mind was that each branch would defend itself against intrusions from the other branches. What you see today is something different. Presidential actions that invade Congress’s prerogatives are not drawing a response from Congress. The courts are instead sometimes standing up for Congress (say on appropriations).
The problem is that having someone else defend you isn’t as effective as defending yourself. The incentives are not the same and the range of options is narrower. Imagine that Congress was running roughshod over the President as during Reconstruction. Imagine further that the President did not respond. Could the courts defend the President from these congressional incursions? To some extent. But as much as the President could or would? Almost certainly not.
Posted by Gerard Magliocca on August 11, 2025 at 09:17 AM | Permalink
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