How Checks and Balances Actually Work

Why It Matters

If you read the United States Constitution, you'll find a detailed architecture of interlocking checks: Congress can override a presidential veto; the Senate confirms judicial appointments; the president can adjourn Congress in certain circumstances; courts can declare laws unconstitutional. On paper, it looks comprehensive. The problem is that paper is not politics.

Checks function in practice only when the actors holding the checking power are willing to use it — and willing to accept the political cost of using it against someone in their own coalition. For most of American history, the strongest check on executive power was not the courts or the legislature but the political norm that presidents respected the independence of institutions they theoretically controlled. That norm — entirely unwritten, entirely informal — has done more to constrain executive power than any constitutional clause.

This lesson looks at cases where checks worked as designed, cases where they were strained, and cases where they failed. The goal is to develop a realistic picture of constitutional government: not a machine that runs automatically, but a system that requires maintenance, courage, and civic culture to function.

A Story

Three Moments, Three Verdicts

In 1803, Chief Justice John Marshall faced a dilemma with no obvious solution. Thomas Jefferson, his political enemy, had taken office and refused to deliver judicial commissions that John Adams had signed on his last night in office. One of the men who had been denied his commission — William Marbury — sued James Madison, Jefferson's Secretary of State, asking the Supreme Court to order the commission's delivery. The case seemed straightforward. But Marshall understood something: if the Court ordered Madison to deliver the commission and Jefferson simply ignored the order, the Court would be exposed as powerless. He needed to establish judicial authority without giving Jefferson an opportunity to defy it.

Marshall's solution was elegant. He ruled that Marbury deserved his commission but that the Supreme Court did not have the authority to order it delivered — because the law that Marbury had used to bring his case to the Supreme Court directly was itself unconstitutional. In the process of ruling against himself, Marshall established something far more important: the principle that the Supreme Court had the power to declare acts of Congress unconstitutional. Jefferson could not object to the ruling because he had won the case. But he had lost the constitutional argument at a fundamental level. Judicial review — the Court's power to strike down laws — had been established without giving the executive branch anything to defy. The check had been created through a move so subtle Jefferson didn't see it coming.

Now fast-forward 130 years. In 1937, Franklin Roosevelt had just won the most lopsided presidential election in American history, carrying 46 of 48 states. He had an enormous mandate for the New Deal programs he had been pushing since 1933. And the Supreme Court was blocking him. Between 1933 and 1936, the Court struck down major pieces of New Deal legislation — the National Recovery Administration, the Agricultural Adjustment Act, others. Roosevelt was furious. His programs had popular support. He had just been reelected overwhelmingly. And nine unelected justices, most of them appointed in an earlier era, were standing in the way.

Roosevelt's response was to propose what became known as the 'court-packing plan' — legislation that would allow him to appoint an additional justice for every sitting justice over the age of 70, up to a maximum of six new justices. Since six justices were then over 70, this would let Roosevelt immediately appoint six new justices and shift the Court's ideological balance. The plan was constitutional. There is no fixed number of justices in the Constitution — Congress can set the size of the Court. It had been changed several times in the 19th century. And yet the plan failed. It failed not because it was illegal but because it was recognized as an attack on judicial independence. Even members of Roosevelt's own party in Congress refused to support it. The Senate Judiciary Committee issued a scathing bipartisan report calling it 'a needless, futile, and utterly dangerous abandonment of constitutional principle.' Roosevelt withdrew the proposal.

There is an irony embedded in the court-packing story: Roosevelt largely got what he wanted anyway. The Supreme Court began upholding New Deal legislation in 1937 — in what historians call 'the switch in time that saved nine.' Whether Justice Owen Roberts's vote change was caused by fear of the court-packing plan or by a genuine shift in his constitutional thinking is still debated. But the practical effect was that Roosevelt won without ever passing the plan. The check on executive power came not from a legal mechanism but from political culture: the widespread belief that packing the Court was wrong, regardless of whether it was legal.

Now consider a case where the check failed. In 1942, President Roosevelt signed Executive Order 9066, authorizing the forced relocation and internment of approximately 120,000 Japanese Americans — the majority of them United States citizens — into remote camps without trial, without charges, and without any individualized determination of loyalty. Congress did not block it. The Supreme Court upheld it in Korematsu v. United States (1944), ruling 6-3 that the wartime emergency justified the racial classification. Every formal check either failed or rubber-stamped a gross violation of civil liberties. The constitutional mechanisms existed. They did not function.

What separates these three moments? In Marbury, a shrewd judicial actor used the formal mechanism creatively to establish a precedent that strengthened the judiciary long-term. In the court-packing episode, an informal check — political culture and congressional norms — stopped a constitutionally legal assault on judicial independence. In Korematsu, formal and informal checks both failed, and 120,000 people paid the price. The lesson is not that checks and balances don't work. It's that they require active maintenance: shrewd actors, political will, and a culture that treats institutional independence as a genuine value rather than a technicality.

Vocabulary

Judicial review

The power of courts to declare laws and executive actions unconstitutional. Established in the United States through Marbury v. Madison (1803), not explicitly written in the Constitution but inferred from its structure.

Court-packing

A political strategy of expanding the size of a court in order to appoint new judges who share the appointing official's ideology. Constitutional in the United States but widely seen as an assault on judicial independence.

Political culture

The shared norms, values, and assumptions about how political life should be conducted within a society. Often the most powerful constraint on political behavior — more powerful than written rules because it shapes what actors consider legitimate even when they could legally do otherwise.

Deference

The practice of one institution yielding to another's judgment in areas where the second has superior authority, expertise, or legitimacy. A critical ingredient of checks and balances: courts defer to legislatures on policy, but not on constitutionality.

Guided Teaching

Start with the distinction between formal and functional checks. Ask: 'What is the difference between a check that exists on paper and a check that works in practice?' Use a simple analogy first: a school might have a rule that students can appeal grades, but if the appeals process is controlled by the same teacher who assigned the grade and the principal always sides with teachers, the formal mechanism doesn't function as a real check. The same logic applies to constitutional checks: the mechanism has to be independent, willing to use its authority, and capable of having its decisions enforced.

On Marbury v. Madison, ask: 'Why was Marshall's solution clever rather than just correct?' Marshall understood that a legally correct order that gets ignored is worse than no order at all — it would have demonstrated that the Court could be defied. By ruling against himself while establishing a larger principle, he secured the Court's long-term power at the cost of a single case. Ask: 'What does this tell you about how institutional actors preserve their own authority?' The lesson is that institutional self-preservation is not the same as personal self-interest — Marshall's genius was serving the Court's long-term authority by accepting a short-term loss.

On court-packing, ask: 'What stopped Roosevelt?' It wasn't a legal mechanism. The plan was constitutional. It was stopped by political culture — by the widely shared belief that packing the Court was wrong in a way that transcended legality. Ask: 'What does it mean when an informal norm is a stronger check than a formal rule?' It means that checks and balances are partly a cultural product, not just a legal one. They depend on enough people treating certain actions as out of bounds — even if technically permitted — to create real political costs for violating them.

On Korematsu, resist the urge to simply condemn it and move on. Ask: 'Why did every formal check fail in this case?' Congress was silent. The Court deferred to the military's judgment of necessity. Public opinion strongly supported the internment. The formal mechanisms were all present — the Court could have struck down the order — but the Court chose to use the 'emergency' doctrine to defer to executive judgment. Ask: 'What does Korematsu tell you about the limits of checks and balances when public opinion supports the violation?' Checks don't function in a vacuum. They are staffed by actors embedded in political culture, and when that culture is fearful or prejudiced, the actors reflect it.

Pull the three cases together. Ask: 'What is the common ingredient in cases where checks work, and what is missing in cases where they fail?' The answer involves: independent actors with genuine authority; political culture that supports institutional independence; willingness to accept short-term costs for long-term institutional health; and the absence of a manufactured 'emergency' that suspends normal reasoning. This is the practical skill: when you see institutional checks invoked, ask not just 'does the mechanism exist?' but 'does it function? Why or why not?'

End with the maintenance question. Checks and balances are not self-sustaining. They require continuous maintenance through the choices of individual actors — judges who rule against the presidents who appointed them, legislators who refuse to pack courts even when it's legal, officials who resign rather than follow illegal orders. Ask: 'What does it take for a person to be one of those actors? What would you need to believe, and what would you need to risk?' This connects the institutional analysis to the character questions that run through the whole curriculum.

For Discussion

1. 1.Why was Marshall's decision in Marbury v. Madison considered clever rather than just legally correct? What was he actually trying to achieve?
2. 2.Roosevelt's court-packing plan was constitutional but failed anyway. What stopped it? What does that tell you about where the real constraints on political power come from?
3. 3.Why did every formal check fail in the Japanese American internment? What conditions made the failure possible?
4. 4.What is the difference between a check that exists on paper and a check that functions in practice? Can you think of an example from your own experience?
5. 5.If checks and balances require active maintenance by individual actors, what does that imply about civic responsibility? Who maintains the system?

Practice

The Checks Audit

1. 1.Choose one of the following pairs of institutional actors and identify one real historical example in which a check worked as intended and one in which it did not:
2. 2.Option A: Courts and the executive branch
3. 3.Option B: The legislature and the executive branch
4. 4.Option C: Federal government and state governments
5. 5.For each example, answer the following questions:
6. 6.1. What was the formal check mechanism involved?
7. 7.2. Did it work? If yes, what made it work? If no, what caused it to fail?
8. 8.3. Were there informal factors (political culture, individual courage, public pressure) that influenced the outcome? Which ones?
9. 9.4. What would have had to be different for the outcome to go the other way?
10. 10.Write a paragraph summarizing what your two examples together tell you about when checks work and when they don't.
11. 11.Discuss with a parent: does your analysis change how you think about news coverage of conflicts between institutional actors today?

Memory Questions

1. 1.What is judicial review, and how was it established in Marbury v. Madison?
2. 2.Why was Roosevelt's court-packing plan defeated, even though it was constitutional?
3. 3.What happened to Japanese Americans under Executive Order 9066, and how did the Supreme Court rule?
4. 4.What is the difference between a formal check and a functional check?
5. 5.What does Korematsu reveal about the limits of constitutional protections?