Paper 3: UPDATED
US Constitution
Evaluate the extent to which the constitutional system of checks and balances works in effectively in
practice
Yes: checks on executive
The courts have the power of judicial review over the Executive branch – here the power of judicial review is
the ability to declare actions of any member of the executive branch to be unconstitutional - in 2017 – State of
Washington V Donald J Trump – the Federal Courts places a temporary restraining order on Trump’s executive
order than banned people from 7 Muslim-majority countries from entering the US which highlights was an
effective check they can have
Congress can amend, block and reject items of legislation recommended by the President and can override the
President’s veto - in 2010 it passed, but significantly amended Obama’s healthcare reform bill and Congress
overrode 4 of Bush’s 11 vetoes (notably the 2008 Food Conservation and Energy Bill)
No: checks on executive
Congress may impeach any member of the executive branch, including the President with just a simple
majority – this has not really worked in recent years, such as is seen with Bill Clinton and with trump in both
2019 and 2021
Congress can override the President’s veto - Roosevelt vetoed legislation 635 times yet was only overridden
only 9 times.
Yes: checks on legislature
The Executive can veto bills passed by Congress – for example, Obama used the regular veto on 12 occasions
including in 2016 when he used his veto for a bill that would have rescinded parts of his healthcare reforms
The power of judicial review – this the power to declare acts of Congress to be unconstitutional and therefore
null and void - in 2013, in the case of the United States V Windsor, the Court declared the Defence of Marriage
Act of 1996 unconstitutional
No: checks on legislature
However, this veto is not particularly that effective because the President can really on use it a small number of
times in the modern day – Obama only used it 12 times, Trump only used it 10 and Biden is yet to use it
highlighting that it has limited use. Furthermore, Congress can override this veto for example, both Trump and
Obama had one veto overridden by Congress suggesting that the check they have is not that effective
Yes: checks on judiciary
The Executive nominates all federal judges - Obama made 2 appointments to the Supreme Court in 2009 and
2010. Trump controversially nominated Amy Coney Barrett in September 2020 for the SC – she was approved
by Congress
Congress has the power of impeachment in the Courts - from 1986-1989 Congress removed 3 federal judges
from the office (e.g., Alcee Hastings for bribery)
No: checks on judiciary
The power of impeachment is not a particularly effective check especially as the last time that it happened was
in 2010 suggesting that it is not a particularly useful or frequently used check – however, he was impeached in
the end which suggests that it can be effective, and it does create a good balance between the judiciary and the
legislature
Evaluate the extent to which the constitutional system of checks and balances acts as an obstacle to
effective government
Checks by Executive
Presidential vetoes can block legislation that comes from a united Congress such as Obama’s veto of the
National Defence Authorisation Act 2015, which was Republican bill, despite majorities in both chambers. This
therefore highlights an obstacle to effective government as even though both chambers did agree to the bill, the
Executive did not and thus the bill cannot be passed through. This is quite a lot of power for the executive to
have and does ultimately make the government less effective as he has the power to stop as many bills as he
wants which could ultimately stop legislation being passed
Checks by Executive
However, this veto is not particularly that effective because the President can really on use it a small number of
times in the modern day – Obama only used it 12 times, Trump only used it 10 and Biden is yet to use it
highlighting that it has limited use. Furthermore, Congress can override this veto meaning that if legislation
needs to be passed, it can be, for example, both Trump (National Defence Authorization Act for Fiscal Year
,2021) and Obama had one veto overridden by Congress suggesting that the effective government can still
happen and legislation can be passed
Checks by Congress
Congress has the power to amend, black and reject items of legislation recommended by the President – Biden
has struggled to pass his legislative programs due to Senators like Joe Manchin which has caused significant
delays and compromises to the Infrastructure Bill. Also, in 2018-19 Democrat-controlled Congress refused to
finance Trump’s border wall leading to a Federal Government shut-down meaning that effective government
could not happen
Checks by Congress
However, the President has to power of Executive orders, a situation in which effective government can happen
and it stops Congress blocking the legislation. The best example of this is in June 2012 when Obama changed
immigration law for children of undocumented migrants (DACA) which survived the Trump presidency and has
stuck. Biden has issued 48 executive orders in his first 16 days in areas including immigration healthcare and
climate. Therefore, even though Congress do have a power which can stop effective government, there is a way
to get around this and this has been done successfully
Checks by Judiciary
The check of judicial review caused problems to the roll out of Obamacare and therefore acted as an obstacle to
effective government in the Court Case National Federation of Independent Business v Sibelius 2012. The SC
agreed with the argument of the states and struck down the Medicaid provision in the law – a victory for the
states
Checks by Judiciary
The courts have the power of judicial review over the Executive branch – here the power of judicial review is
the ability to declare actions of any member of the executive branch to be unconstitutional - in 2017 – State of
Washington V Donald J Trump – the Federal Courts places a temporary restraining order on Trump’s executive
order than banned people from 7 Muslim-majority countries from entering the US which shows a situation in
which the judiciary are not an obstacle to effective government but do also make America more democratic. It
highlighted the way the system of checks and balances creates a government where not just one person, such as
the executive has the power and thus the system is far more balanced and representative of a number of views.
Even though sometimes judicial review can cause issues with acts that the executive tries to pursue, overall it
creates a system in which the President can be effectively checked and power is balanced and therefore the
system is not really an obstacle but just creates more democracy. And although in this example they did black
legislation, they blocked legislation that the majority would not want
Furthermore, Presidents can one again use Executive orders to avoid checks and thus pass legislation that they
believe needs to be passed
Evaluate the extent to which the strengths of the US Constitution outweigh its weaknesses
Strengths Weaknesses
Vagueness and interpretive amendments allow the Interpretative amendments have trampled on the
Constitution to remain flexible in response to 21st rights of individual states AND vagueness has meant
century challenges loopholes have been exploited such as executive
In Obergefell v Hodges, same sex-marriage was ruled orders
constitutional for the whole of the USA The ruling of Obergefell V Hodges made same-sex
marriage legal in the 13 states that made it illegal
The interpretation of the Constitution by the SC The role of the SC grants almost entirely accountable
allows for non-partisan interpretation power to 9 unelected Justices
Obamacare was upheld only because the SC ruled it Striking down of Obama’s executive order DAPA in
was a valid tax under the Constitution Texas v US, ignoring Obama’s electoral mandate
The amendment process has allowed for significant The amendment process has prohibited necessary
change while protecting the Constitution against change
frequent, and unwarranted changes Given the increasing number of mass shooting in the
The 13th amendment abolished slavery, the 17th USA, the second amendment is definitely in need of
amendment allowed for an elected Senate and the review as it is clearly out of date
19th amendment extended voting rights regardless of The ERA has never been able to be passed
sex
States have remained largely independent and are States have increasingly found their powers
well-protected - there are a wide range of laws and diminishing as a result of insufficient protection of
, cultures across the USA showing that the their powers and the fact that federal government
Constitution has been able to stay updated can dominate policymaking
The variety of laws across the states on the death Obamacare took supremacy over state healthcare
penalty (legal in 31 states) and marijuana (legal for systems
recreational use in 18 states such as California, but
fully illegal in Georgia and other states)
The federal government has been prevented from In practice, the federal government has
taking vast and unquestioned power demonstrated wide, unchecked power
The SC ruling in 2016 against the federal government Obama negotiated the Iran deal with almost no
in Texas v US (a case decided regarding former Congressional input
President Barack Obama's executive action Deferred In upholding Obamacare in the NFIB v Sebelius case,
Action for Parents of Americans and Lawful the federal government now seems to have vast
Permanent Residents – they affirmed the decision of power over healthcare
the lower court to block the implementation of
DAPA)
Citizens’ rights remain mostly protected through the The rights of citizens often conflict
SC and Constitutional rights, even when they are But many don’t want the second amendment to
controversial remain so the constitution can never represent all
The right to bear arms has been upheld despite beliefs – and many lose their lives to gun violence
recent mass shooting such as the Orlando nightclub each year…
in 2016 or Sandy Hook in 2012
Highly representative government as a result of Electoral college can produce a government not
many elections reflecting wishes of people
Biden in 2020 – he won definitively through the Hilary Clinton in 2016 won the popular vote but lost
electoral college but he also won the popular vote because of the electoral college system
Checks and balances ensure branches work together Policymaking is difficult and can lead to gridlock –
– this prevents tyranny and promotes compromise partisanship can make Congress even worse
Trump didn’t get funding for the wall in 2016 – January 2018: government shutdown of around 6
prevention of tyranny and something not weeks as a result of disputes over DACA and of
representative of majority view funding for the wall
Evaluate the extent to which the USA operates within a constitutional framework of federalism
Yes No
Each state is able to decide upon and enforce a wide The growth of federal gov seems to increasingly
variety of laws encroach upon state ‘reserved powers’
The variety of laws across the states on the death In Kentucky, for example, a clerk was imprisoned for
penalty (legal in 31 states) and marijuana (legal for refusing to issue same-sex licenses after it was
recreational use in 18 states such as California, but legalised suggesting a move away from states having
fully illegal in Georgia and other states) overall power
The SC has ruled in favour of states against federal gov The EC and the HoRs place a great importance on a few
Texas v US (2016) overturning DAPA – SC ruled in states
favour of the state of Texas California is worth 55 EC votes, Texas is worth 38,
It is also likely that the SC is going to let the Heartbeat Florida is worth 29, so these states are heavily
Bill happen in Texas, which would effectively make targeted by candidates, often as the expense of seven
abortion illegal and handing back this autonomy to the states worth just three votes each
states
During national crises or national disasters such as Only the federal gov has the resources to deal with
Covid-19 state governors act in the best interests of terrorist attacks, market crashes and natural disasters
their states Hurricanes Harvey and Irma caused upwards of $200
billions of damage – this is something states just could
not afford
Appealing to the SC is not a right, so states remain The SC has also ruled for the federal gov, further
important centralising political power
In 2017, the SC refused to hear a case on whether In upholding Obamacare, in the NFIB v Sebelius case,
sexual discrimination in the workplace extends to the federal government now to have vast power over
discrimination on the basis of sexual orientation – but healthcare
, if states had wanted a hearing on this, they could have
taken it to their state court
Electoral practices vary and are developing States do also depend on the federal gov during
The testing of online voting in West Virginia national crises. The Federal Emergency Management
Agency exists because the individual states cannot do
what federal gov can do
Evaluate the view that the influence of the Federal Government over the states has declined since 2008
Obama
Yes:
Healthcare:
- Texas v US (2016) overturning DAPA – SC ruled in favour of the state of Texas
It is also likely that the SC is going to let the Heartbeat Bill happen in Texas, which would effectively make
abortion illegal and handing back this autonomy to the states
No:
Healthcare:
- Many Republicans saw Obama’s healthcare reforms in 2010 as ‘the end of federalism’ and there were those in
the Tea Party Movement who accused Obama of being more of a socialist than a federalist
- States were required to participate in this extension of Medicaid or lose all of their federal funding for
Medicaid
- The significant increase in federal money going to the states between 2005 and 2010 came partly as a result of
such programmes as: the re-authorisation of the State Children’s Health Insurance (S-CHIP) programme in
2009; the expansion of Medicaid and over $4 billion invested in the Race to the Top programme to boost
education in the states, as well as programmes like the Pell Grants for university education
Trump
Yes:
The pandemic:
- Andrew Cuomo, governor of the worst affected state, New York, had a lockdown in place by mid-March. One of
the main features of US politics in late March was the ongoing media battle between Governor Cuomo and
President Trump.
- By the end of March, 32 out of 50 states had lockdowns in place. This was based on guidelines from the federal
government, but the decision to go into lockdown lay with the states. Furthermore, the exact nature of each
lockdown varied significantly from state to state. It is important to stress that there has been no national or
federal lockdown.
No:
Immigration:
- One of Trump’s first actions were to sign an executive order that attempted to further regulate the setting up
by many states of sanctuary cities
---> The order proposed that sanctuary cities would be at risk of losing various federal grants. This was a
significant threat, as such cities receive huge sums from the federal government to fund a whole range of
programmes
Biden
Yes:
The SC is likely going to let the Heartbeat Bill happen in Texas, which would effectively make abortion illegal
and handing back this autonomy to the states. The SC could likely also overturn Roe v Wade which would in
effect hand power back to the states over abortion. Although this is not Biden’s choice, it does highlight a way in
which power has been returned to the states and therefore the influence of the federal government has
declined
No:
The pandemic
- Biden has signed a $1.9 trillion Covid relief bill into law less than two months into his term. The plan will send
direct payments of up to $1,400 to most people in America. The bill will also extend a $300 per week
unemployment insurance boost until 6th September and expand the child tax credit for a year. It will also put
nearly $20 billion into Covid-19 vaccinations, $25 billion into rental and utility assistance, and $350 billion into
state, local and tribal relief.
