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Which branch of our government should be the most powerful?

That's the question that was posed by Karl to the bloggers at NWBloggers.com some time back. As far as I know, none of us ever submitted an answer to the question.

[Update: It turns out it wasn't Karl that made the suggestion. It was Playing Possum from NWBloggers.com. My apologies to Possum.]

I've been thinking about it for a while now, and I've decided to post my answer here.

I've frequently heard it said that all three branches of the government are essentially equal, and that a system of checks and balances was instituted to prevent any one of them from becoming too powerful. I don't quite think that's true though.

Yes, it's true that each branch of the government is invested with specific powers that the other branches are not. Yes, it's true that there is a system of check and balances built into our Constitution. It doesn't follow though that each branch is, or was intended to be, equal in power to the other two branches.

I believe that the founding fathers intended for the legislature to have the most power in our republic. That's pretty much the way things appear to be structured when you analyze the Constitution anyway.

In fact, I think that the founding fathers actually used the order in which the various branches are defined in the Constitution to also express what the relative power of each branch should be. That means that I believe that the founders intended for Congress to have the most power, followed by the President, and finally by the courts.

The Congress is comprised of two houses, the House of Representatives and the Senate. As originally laid out in the Constitution, the House of Representatives was intended to represent the people of the United States, and the Senate was intended to represent the several States.

The very first specific power granted by the Constitution was granted to the House of Representatives, and that is the power to originate bills to raise revenue. This is an important power, and I believe it is the first power granted because it is granted to the people's representatives. One of the principal causes of the Revolution was the concept that taxation without representation was an abuse, and I believe the founders granted this power first because of that concept.

The second specific power granted by the Constitution is also granted to the House of Representatives, and that's the power of impeachment. This power is only granted to the House of Representatives. The power of impeachment is the power to accuse an office holder of wrongdoing.

The third specific power granted by the Constitution is the power to try impeachments. That power is only granted to the Senate. When an office holder is impeached, if they are convicted by the Senate, the punishment can include removal from office. Even worse, the punishment may also disqualify the convicted from ever holding an office of trust or profit under the United States again, and this disqualification cannot be removed, even by a Presidential pardon.

The power of impeachment is the ultimate political power in our government. It's a power that is reserved only for Congress, but it affects every office, in every branch of the federal government. Of course the removal of an impeached official can only occur upon conviction, but since the power to try impeachments rests with the Congress, the Congress can remove the President from office. Congress can remove the Chief Justice of the supreme Court from office. The Congress can remove any official from office.

This is the ultimate check in our system of checks and balances. Neither the executive branch nor the courts have any power to compare to it.

The Congress has other powers over the executive branch and the courts beyond the power of impeachment. First among these, the Congress can, under certain circumstances, choose the President and the Vice President. This can happen if, as the result of a Presidential or Vice Presidential election no candidate receives a majority of electoral votes. This has never happened, but the potential does exist.

The 20th amendment to the Constitution provides still more cases where Congress can choose the President and Vice President. If after an election has been decided, but before the Presidential term begins the President elect and the Vice President elect both have failed to qualify for office then Congress can provide by law for this case and declare who shall act as President, or determine the manner in which the person to act as President shall be chosen.

Finally, Congress can also provide by law for the case where, when the right of choice falls to the House of Representatives or the Senate any of the people from which the House or the Senate is to choose dies.

So not only can Congress remove a sitting President, they can also, under certain circumstances choose who the President shall be.

A lot has been said about the power of the President to veto an act of Congress, and it's not an insignificant power. Congress can still override a Presidential veto however. It's not easy, but it can be done, and it has been done in the past.

Congress even has some power over the powers granted exclusively to the President. The President is the Commander in Chief of the military forces of the United States. The President has the power to make Treaties, to nominate and appoint Ambassadors, Cabinet Secretaries (other public Ministers and Consuls), Judges and all other Officers of the United States (except where the Constitution makes other provisions). These powers are all tempered by the power of the Congress though.

Military appropriations cannot come from the Executive branch. They can only be authorized by the Congress, and only for a maximum of two years at a time. This can put quite a restraint upon the President's power over the military. Further, even though the President can make treaties, it requires two thirds of the Senate to confirm them, and only Congress can declare war.

Every appointment power of the President is limited by Congress as well. The appointments of Ambassadors, Judges, Cabinet Secretaries and other Officers are all subject to the approval of the Senate. It is only when the Senate is in recess that the President can make these appointments without its approval.

The President can make some appointments without the Advice and Consent of the Senate. This is limited to inferior Officers, and still subject to the Congress' choice. Congress can choose to vest the Appointment power in the President alone, or in the Courts, or in the Heads of Departments.

Essentially no power of the President is not in some way tempered by the power of Congress, primarily by the Senate. None of this says that Congress has absolute authority over the Executive branch of the government though.

As mentioned earlier, the President can still make appointments without the Senate's approval. If necessary, the President can appoint someone to every vacant office in the land during the Senate's recess. These appointments are limited in duration. They expire at the end of the Senate's next session. The tricky bit there though, is that at the end of the Senate's next session, he can re-appoint the same people to those offices if he so chooses, while the Senate is in recess.

The President's power over the Congress is essentially limited to this recess appointment power, to the limited power of the Presidential Veto, and to the ability to convene both or either Houses of Congress in extraordinary circumstances, and to adjourn them if they disagree with one another about when to adjourn.

The powers granted to the President are not granted to the Congress though. Congress cannot make treaties. Congress cannot appoint Ambassadors or other Officers. Congress does not command the military. Those powers are still reserved to the Executive branch alone.

As mentioned before, Congress also has significant power over the Judicial branch of our government. Congress, not the supreme Court, has the power to ordain and establish inferior courts. Congress can impeach Judges and upon conviction, remove them from Office. Except for cases involving Ambassadors and Officers of the United States, or cases in which a State itself is a party, Congress also has the power to restrict the jurisdiction of the courts.

The Congress is even granted the power to alter the Constitution, although it doing so is incredibly difficult. If two thirds of both Houses of Congress propose amendments to the Constitution and those amendments are approved by three quarters of the states, or by conventions in three quarters of the states, depending upon which ratification mode the Congress chooses, then those amendments will become part of the Constitution.

The only other way a constitutional amendment can be proposed is when the legislatures of two thirds of the states apply to Congress to form a Constitutional Convention to propose amendments. Ratification of those amendments still requires three quarters of the states or of conventions in the states, depending on how Congress chooses.

This process doesn't involve in any way the Executive branch or the Judicial branch of government. The process is under the exclusive control of the Congress and the states.

I think it should be clear from the foregoing that the founders believed that Congress should be the foremost branch of government in the United States. All legislative power is vested in the Congress, and the Congress has been granted powers over the other two branches of government that are not matched in any significant way by the powers the other two branches are given over the Congress.

There are some that believe that the courts have become the most powerful of the branches of our government. I believe that certain Judges and Justices have come to be of this opinion as well. This "power" rests upon the ability of the courts to interpret the Constitution, a power which is not granted to the courts by the Constitution.

That the founders did not intend for the courts to have this power seems clear. For one thing, if the founders had intended to grant this power to the courts, I believe they would have explicitly granted it. They did not. Further, the founders expressed in their public writings the fear that the courts could become a de-facto government if they did acquire that power.

Alexander Hamilton wrote in the 81st of the Federalist Papers "[T]here is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution." I think it's clear from the way the founders structured the Constitution that they wanted the Courts to have the least power of all three of the branches of our government.

Considering the way things seem to be these days, especially with the courts taking unto themselves the power to interpret the Constitution, I would say that the founders intent has been violated. We really need to return to that vision.

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Perri Nelson commented:

THIS is why elections matter. We've elected a bunch of dunderheads and anti-American ninnies into the most powerful branch of our government.
Thank GOD that they only hold a slim majority.

Angel commented:

ah yes the Congress and SOTH think they are the President!..great work Perri!:)

Playin Possum commented:

Your analysis is correct. Clearly Congress was intended to be the superior branch. Your elaboration of the disciplinary hierarchy makes the issue clear: The President can be removed by Congress, but not the reverse. The Executive is charged with executing duly passed laws. Other than that he is a secondary part of the process of that enactment. As for the military, I think the President's power over the military was intended to be far less than it is because the military was intended to be less than it is. The founders didn’t intend to fashion a nation whose future was constant war. War should be the exception… And I am pleased you remember that judicial review was the first great power grab. Oh yes, but Congress is slow; it is hampered by gridlock... It's a defect of the current American mindset that "we" seem to automatically assign virtue to speedy certitude. A sizable fraction of this country prefers the certainly wrong over the uncertainly right... Why did GWB push so hard for support to invade Iraq when he did? He was certain and he knew Blix & company were ready to conclude that although the Iraqis had made a great game of hiding they actually had nothing to hide... The shrub was certainly wrong... I'll close with a tangential point on the issue of speedy, decisive action. This will sound like I am saying a higher casualty rate among our armed forces would be a good thing - maybe I am. Does it occur to anyone that if our army wasn't quite as proficient as it is, the President might be a little less inclined to use it in optional situations? War is ugly. That's the nature of the activity. Trying to make it ugly only for the other guy can be taken too far because it encourages recklessness and adventurism. War should hurt and it should hurt everyone. That's why I think we should never field a volunteer army, even though it is a better army. What was the biggest difference between 'Nam and Iraq? Conscripts. I still remember "hell no we won't go"... As the machine of war becomes perfected the barriers to its casual use melt away. Soon it may be a machine literally: Will a President hesitate to send in the droids? Why should he/she? Where's the downside? GWB has demonstrated a President isn't so far removed from a little boy as to be impervious to the lure of the great shiny toy... He found his dad's gun and he shot all of us in the foot with it - and he's on track to become the greatest killer ever of ordinary Iraqis, which makes a mockery of the last "moral" justification we had for this sick endeavor. Against this, mutually assured destruction is seen to have advantages. Grant is credited with the phrase "war is hell." I think it should stay that way... Nobody wants to go to hell... Oh... BTW, Angel... The President is your servant, not your daddy... If you can figure out the difference you will see the flaw in your attitude that renders your attitude downright unAmerican...