First, the rise of the party system means that the branches won’t serve as effective checks when Congress and the president are of the same party. The inverse is true, too. When government is divided, these checks become a screechy affair, and it’s hard to know when one side is crying wolf. Second, the growth of the executive branch, particularly under the New Deal, has overwhelmed the old balance.
But governments adapt. Intra-agency checks, like the Dissent Channel, help recreate some checks and balances within the executive, giving rise to more informed discussion and innovative solutions. So too do interagency checks. Agencies with differing missions — like, for example, the Environmental Protection Agency and the Commerce Department — enrich the policy debate every day.
When I was the Justice Department’s acting solicitor general, it was easy to see both types of executive branch checks at work. When our office had to choose a position in an important case, I heard from lawyers across our department, whether from the Civil Rights Division or the Criminal Division. This intra-agency debate made our decisions better. I saw the same benefits from interagency debate when considering cases that set at odds multiple agencies, each of which would try to persuade the solicitor general to take its side. A question about terrorism, for example, could generate competing positions by the State and Defense Departments.