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Nichols: System of checks and balances at root of our republic

POSTED: August 16, 2010 1:00 a.m.

A major principle of our democracy is that we are a republic, a country without a king or queen (not counting professional athletes or rock stars).

In this republic, kingless form of government, the U.S. Constitution and all federal laws and treaties made under its authority shall be the supreme law of the land. The recent Arizona law about illegal immigrants created a dispute between local and federal authority.

The border between Arizona and Mexico is also part of the border between the United States and Mexico. A federal judge declared that parts of Arizona's illegal immigrant law were unconstitutional because that law interferes with the enforcement of federal immigration law. The case will probably be appealed all the way to the Supreme Court for a final decision.

Government in any form has the ability to legislate anything, unless restricted by some civil right granted in a constitution, law or treaty.

In the United States, the power of total sovereignty is restricted by constitutional and other legal grants of civil rights, such as the right to vote. This total power is guarded by a complicated system of checks and balances, as noted by Alexis de Toqueville after touring this country for nine months in 1831.

The power of the federal government rests upon constitutional authority. Powers not granted to the federal government in the Constitution are reserved to the states. Thus the states and the federal government are supposed to check and balance each other.

Some powers are exercised jointly by both the federal and state governments such as the power to tax. Some power is exercised only by the central government, such as the power to send and receive diplomats or make treaties with foreign governments, or the power to coin our money.

Some power is exercised only by local government such as granting construction permits or providing local water supply and waste disposal.

The reserved powers retained by the states were thought at first to be huge. But over time, the central authority has grown at the expense of the powers reserved to the states.

An expansion of federal legal power evolved in two areas: interstate commerce and the federal income tax. Interstate commerce, when small, seemed easily controlled by state legislatures. But when the giants like steel, railroads and now oil producers grew so large that states were unable to maintain effective oversight regulation, federal controls then became necessary.

When the federal government began to impose the income tax, it gave huge monetary power to itself. The income tax was initially to be only temporary. But it raised so much money that the federal government will never stop collecting income tax.

With all that money comes the power of Washington to spend or not spend its money on education, roads, environmental concerns and, these days, on bailouts for the banking or automobile industries. The federal government can substantially increase its power by using money as a carrot to encourage states to go along with federal mandates.

The president does not make laws. He can only propose legislation. Then he can sign or veto, but vetoes can be overridden with a two-thirds vote. The president can draft a treaty with a foreign government but only with the advice and consent of the Senate.

The president is commander in chief of the military, but only Congress can make a declaration of war which it has not done since 1941. Congress has the power of the purse and can check the president by refusing to fund a request of his.

The Supreme Court can declare an action by the president to be unconstitutional, as when it ruled to overturn President Harry Truman's seizure of a steel company during the Korean war.

The Supreme Court can declare a law of Congress to be invalid it if conflicts with the Constitution. See Marbury vs. Madison (1803) for reasons behind this power.

Our system of checks and balances between state and federal governments, and among the three branches of federal government, has worked fairly well. During the past 200 years, we have grown to superpower status militarily and economically. But we have not served as a role model for other new states.

When the United Nations was formed in 1945, it had only 50 members. Now it has more than 180. Only one of these new members, Latvia, has patterned its form of government on the American system. Most follow the less-complicated British parliamentary form of government.

Dr. Tom Nichols is a retired college professor who lives in Gainesville. His column appears regularly on Mondays and on gainesvilletimes.com.

 



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