Skip to content
Search

Latest Stories

Top Stories

Seeking moderation through checks and balances

Opinion

Images of the White House, Capitol and Supreme Court

The branches of government no longer operate with sufficient checks on their power, writes Frazier.

Tetra Images/Getty Images

Frazier is an assistant professor at the Crump College of Law at St. Thomas University. Starting this summer, he will serve as a Tarbell fellow.

Written into the bones of the Constitution is an emphasis on moderation. In designing each branch, the Framers thought of ways to make sure its powers wouldn’t grow too large or lead to hasty action. Over time, however, each branch has found ways to expand its mandate. This isn’t news — in fact, to our credit, we’ve tried to adopt new checks and balances to restore the sort of deliberative and methodical government intended by the Framers.

A quick review of these innovations and their subsequent demises shows two things: First, we’ve long been aware that the balance between the branches is something that requires constant management and evolution; second, we’ve lost sight of the Framers’ prioritization of a workable, reliable government by shooting down our intended fixes. Before we dive in, though, it’s important to flag that this is just a summary of very complex areas of law.


Let’s begin by exploring the legislative veto. As the number of federal agencies grew in the 20th century, Congress found itself struggling to keep track of all the rules and regulations being promulgated by the EPA, FCC and the like. To make it easier for Congress to monitor and, if necessary, reverse agency action — legislators started including a “legislative veto” in their bills. This permitted Congress to nullify an agency rulemaking by a joint resolution and without the president’s assent. Although few doubt that this helped prevent the possibility of agencies abusing their powers, a majority of the Supreme Court struck down this practice.

Next, consider the line-item veto. At the outset of the nation, Congress passed relatively straightforward bills that lent themselves to straightforward and prompt analysis by the executive branch. Fast forward 200 years or so and Congress now operates very differently. Its appropriations bills can stack feet high when printed out and are often the result of exceedingly long and contentious debate. In the event that the president wants to veto a provision of that bill, he usually faces an all-or-nothing option — the executive cannot strike down individual provisions, without causing the entire bill to collapse. The line-item veto aimed to fix this binary by empowering the president to veto singular provisions while allowing the rest of the bill to go into law. This innovative remedy also failed to survive review by the Supreme Court.

Finally, some checks have simply been forgotten. For example, the Framers intended judicial impeachment to survive as a legitimate check on judges. Consider that less than a decade into the country’s experiment with the Constitution, the House voted to impeach a Supreme Court justice for, in part, “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partisan.” This vote was surely motivated by political aims but it still serves as a signal that the Framers did not regard any office as free from review. Though some judges have been impeached in recent decades, I’d argue that few members of the judiciary fear that Congress will meaningful probe into their conduct.

The “new” checks — the sorts I’d wager would be favored by the Framers — have been tossed aside. As a result, there are more instances now than ever before of different parts of the government operating without sufficient checks on their use of power. As made clear when members of the Founding era ditched the Articles of Confederation, when a system of government struggles to function in response to modern issues it may be time for substantive reforms. Previous reform efforts may have floundered but we owe it to the Founders and the Framers to continue to pursue a more perfect Union — one marked by moderation more so than the aggregation of power.

Read More

Hands Off Our Elections: States and Congress, Not Presidents, Set the Rules
white concrete dome museum

Hands Off Our Elections: States and Congress, Not Presidents, Set the Rules

Trust in elections is fragile – and once lost, it is extraordinarily difficult to rebuild. While Democrats and Republicans disagree on many election policies, there is broad bipartisan agreement on one point: executive branch interference in elections undermines the constitutional authority of states and Congress to determine how elections are run.

Recent executive branch actions threaten to upend this constitutional balance, and Congress must act before it’s too late. To be clear – this is not just about the current president. Keeping the executive branch out of elections is a crucial safeguard against power grabs by any future president, Democrat or Republican.

Keep ReadingShow less
Why free speech rights got left out of the Constitution – and added in later via the First Amendment

Supporters of free speech gather in September 2025 to protest the suspension of 'Jimmy Kimmel Live!', across the street from the theater where the show is produced in Hollywood.

Why free speech rights got left out of the Constitution – and added in later via the First Amendment

Bipartisan agreement is rare in these politically polarized days.

But that’s just what happened in response to ABC’s suspension of “Jimmy Kimmel Live!” The suspension followed the Federal Communications Commission chairman’s threat to punish the network for Kimmel’s comments about Charlie Kirk’s alleged killer.

Keep ReadingShow less
Pam Bondi Made a Mockery of Congressional Oversight
President Donald Trump holds a press conference with Attorney ...

Pam Bondi Made a Mockery of Congressional Oversight

Checks and balances can only work if government officials are willing to use their authority to check abuses of power by others. Without that, our Constitution is an empty promise.

And without the will to stand up to such abuses, freedom and democracy also become empty promises. As James Madison wrote in Federalist 51, the Constitution was designed to ensure that “the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”

Keep ReadingShow less
Hostages Freed, Questions Remain: Trump’s Role and the Cost of Binary Politics

U.S. President Donald Trump, September 18, 2025.

(Photo by Leon Neal/Getty Images)

Hostages Freed, Questions Remain: Trump’s Role and the Cost of Binary Politics

In February of this year, Kristina Becvar and I published a column in The Fulcrum reaffirming our mission amid a barrage of executive orders from the Trump Administration. We sought to clarify our role—not as partisan commentators, but as stewards of fact-based reporting and healthy self-governance.

We wrote then:

Keep ReadingShow less