America's famed 'checks-and-balances' governance system is failing
Jan-Werner Müller
Wed 16 Jul 2025 06.00 EDT
It has been said many times, but saying it appears to have no consequences: our system of checks and balances is failing. The US supreme court allowing the president effectively to abolish the Department of Education only reinforces this sense; Sonia Sotomayor, in her dissent, explicitly wrote that “the threat to our Constitution’s separation of powers is grave” – but she did not explain how to counter the threat. The picture is complicated by the fact that what critics call “the stranglehold the checks and balances narrative on the American political imagination” has prevented positive democratic change. Hence it is crucial to understand where the separation of powers itself needs to be kept in check and where it can play a democracy-reinforcing role. Most important, we need counterstrategies against the Trumpists’ usurpation of what should remain separate powers.
While pious talk of the founders’ genius in establishing “checks and balances” is part of US civil religion and constitutional folklore, the system in fact never functioned quite as intended. The framers had assumed that individuals would jealously guard the rights of the branches they occupied. Instead, the very thing that the founders dreaded as dangerous “factions” – what we call political parties – emerged already by the end of the 18th century; and thereby also arose the possibility of unified party government.
The other unexpected development was the increasing power of the presidency; the founders had always seen the legislature as the potential source of tyranny; instead, the second half of the 20th century saw the consolidation of an “imperial presidency”, whose powers have steadily increased as a result of various real (and often imagined) emergencies. Some jurists even blessed this development, going back to Hamilton’s call for an energetic executive, and trusting that public opinion, rather than Congress or the courts, would prove an effective check on an otherwise “unbound executive”.
The dangers posed by unified party control and a strong presidency were long mitigated by the relative heterogeneity of parties in the US; internal dissent meant that Congress would often thwart an executive’s agenda. Less obviously, Congress’s creation of largely independent agencies, acting on the basis of expertise, as well as inspectors general within the executive itself established an internal system of checks. It also remains true, though, that, compared with democracies such as Germany and the UK, an opposition party in the US does not have many rights (such as chairing committees) or ways of holding a chief executive accountable (just imagine if Trump had to face a weekly prime minister’s question time, rather than sycophantic Fox hosts).
https://www.theguardian.com/commentisfree/2025/jul/16/checks-balances-failing-trump-supreme-court
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