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The Constitutional Checks and Balances that Neither Check Nor Balance

  • Nancy Kassop
Chapter
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Part of the The Evolving American Presidency Series book series (EAP)

Abstract

The genius of the constitutional system that Madison gave us was its fundamental reliance on the concept of checks and balances as the vehicle for guaranteeing limits on government power. Each branch would monitor or watch over the others to insure that no branch exceeded its authority or invaded another’s sphere. Such a system of governmental “insurance” depended upon each branch exercising its responsibility and vigilance at all times. Throughout history, examples abound of one renegade branch edging beyond its borders, only to be reined in by either one or both of the others. But what if the enforcing institutions do not perform this role, either inadvertently or intentionally? Are we at one of those historical junctures where the institutions of government are out of balance, and are in need of being reminded of the essential purpose of Madison’s structural design and allocation of authority?

Keywords

Federal Court Geneva Convention Military Tribunal Military Commission Habeas Corpus 
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Notes

  1. 2.
    Louis Fisher, Constitutional Dialogues:Interpretation as Political Process (Princeton:Princeton University Press, 1988).Google Scholar
  2. 7.
    See, Schechter Corporation v. U.S., 295 U.S. 495 (1935) and Panama Refining v. Ryan, 293 U.S. 388 (1935); Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952); U.S. v. Nixon, 418 U.S. 683 (1974); New York Times Co. v. U.S., 403 U.S. 713 (1971).Google Scholar
  3. 8.
    Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston:Houghton Mifflin, 1973).Google Scholar
  4. 20.
    The Supreme Court decided the cases of Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004); Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004); and Rasul v. Bush, 124 S. Ct. 2686 (2004). Other cases currently in the lower federal courts either challenge additional aspects of the Bush antiterrorism policies (Hamdan v. Rumsfeld, No. 04–5393, U.S. District Court, District of Columbia, decided November 8, 2004, contesting the establishment of military tribunals on the order of the president) or are outgrowths of cases that were decided by the Court in June 2004, and are back in the lower courts, as the parties seek to implement those rulings and flesh out the details. See, Padilla v. Hanft, No. 2:042221–26AJ, U.S. District Court, District of South Carolina, decided February 28, 2005, and brought in South Carolina, consistent with the Supreme Court ruling in Rumsfeld v. Padilla as to the proper jurisdiction; and In re Guantanamo Detainees Cases, 02-CV-0299 et al., U.S. District Court, District of Columbia, decided January 31, 2005, and Khalid v. Bush, CV No. 1:04–1142 and CV No. 1:04–1166, U.S. District Court, District of Columbia, decided January 19, 2005, addressing the issue of status hearings for foreign national detainees at Guantanamo Bay, following up on the Court’s decision in Rasul.Google Scholar
  5. 36.
    Michael J. Sniffen, “Government Asserts Broad Power to Detain Enemy Combatants at Guantanamo Bay,” Associated Press, December 12, 2004, available at http://www.law.com/jsp/article.jspid1101738491901 Accessed January 7, 2005.Google Scholar
  6. 40.
    Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, 66 Fed. Reg. 57, 833 (November 13, 2001).Google Scholar

Copyright information

© Michael A. Genovese and Lori Cox Han 2006

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  • Nancy Kassop

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