Are the Founders’ Checks and Balances Still Holding Strong?

As America begins to celebrate 250 years since its founding, worries abound for the immediate future. One of the most disturbing cracks in the foundation of freedom bequeathed by the Founding Fathers is the breakdown in the system of checks and balances between the three branches of government. Justice is no longer blind but revels in naked partisanship. The executive office continues to amass power in a starkly unilateral fashion, and Congress has become more performative than ever, indulging in speechifying as few useful pieces of legislation make their way into law. “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself,” James Madison wrote in Federalist No. 51 in 1788. As 2026 America becomes increasingly fractured by deep social, cultural, and political divisions, the question of the federal government's ability to control itself becomes more precarious. Let’s begin with the executive branch.

Checks and Balances Sidestepped by Obama’s Blank Checks

Since Barack Obama’s rapid elevation from a Chicago community organizer to an unknown first-term US senator to occupying the Oval Office, the presidency has increasingly been run by executive order rather than the classic process of building consensus in Congress to pass favorable legislation. This practice marked American politics for most of the 20th century. Obama’s 296 executive orders during his eight years in office only scratched the surface of his personal mandates. Once you add up his various memorandums, notices, determinations, proclamations, and presidential orders, the number comes to 2,136 official executive statements, The Washington Post reported in January 2025.

And yet that is an inadequate number.

“Unlike executive orders, there’s no complete record of how many memos Obama has issued, since they aren’t counted. Presidents only have to release (and publish in the Federal Register) memos they think are relevant,” the paper noted. “According to [researcher Kenneth S.] Lowande, it’s likely Obama wrote five to 10 times more memos than the 246 we know about — which is far more than the 131 that [his predecessor George W.] Bush released,” The Post detailed. “I think [Obama] was pretty aggressive in thinking about ways you could apply old laws to new situations and extract the last ounce of presidential preference out of prior laws,” Bowdoin College professor of government Andrew Rudalevige told the paper. Obama’s various executive fiats featured sweeping actions on crucial issues such as immigration, health care, gun control, and same-sex marriage. This example would serve as a template for even more flagrant overreach by Joe Biden’s administration. In between the two Democratic presidencies, and now following in Biden’s aggressive wake, Republican Donald Trump has leaned heavily on executive action to push his agenda. He and his most ardent supporters justify it by pointing out Obama's and Biden's excesses in a tit-for-tat argument that will only encourage the next Democratic president to up the stakes. “When Democrats are in power, they’re gonna do it anyway, so we need to do it now” is a commonplace argument made by Trump backers today. That certainly voices practical frustration, but as a way of upholding checks and balances in Big Government, it is a recipe for future disaster.

The Rise of Activist Judges

Just as worrisome is the unapologetic rise of clear partisan bias in the federal judiciary ranks. Seemingly every move Trump has made so far in his second term has been held up, blocked, or kneecapped by individual judges sitting on circuit courts around the United States. Their written rulings do not remotely represent the above-the-fray calmness of the neutral referee. Instead, they reflect contemporary emotion over settled precedent and appeal to personal beliefs rather than the general respect for the rule of law. No matter how you may feel about the issue itself, the reasoning offered by US District Judge Indira Talwani, an Obama appointee based in Boston, was striking. In her July temporary restraining order – blocking a provision in legislation passed by Congress and signed by President Trump barring Medicaid funds from going to Planned Parenthood – she displayed nothing but rogue defiance. Both houses of Congress passed a law, duly signed by the president, that intended to cut funding to a controversial abortion provider, and Talwani, in the guise of an objective judge, decreed that she would not accept that. “In particular, restricting [Planned Parenthood’s] ability to provide healthcare services threatens an increase in unintended pregnancies and attendant complications because of reduced access to effective contraceptives, and an increase in undiagnosed and untreated [sexually transmitted infections],” Talwani wrote. She thus took the stance that her personal views on the value of Planned Parenthood’s services overrode the express will of the legislative and executive branches. In doing so, she made a mockery of the Founders’ checks and balances framework. We’ve left the legislative branch for last, perhaps because it has seen its stature decline precipitously in recent decades.

All Talk, No Action

Here is a damning indictment of Congress, written in December 2019 by David Davenport at The Washington Examiner, as Democrats controlled the House and Republicans the Senate:

“So far, in 2019, Congress has enacted only 70 laws, at least 10 of which were purely ceremonial. A typical two-year Congress, even in these leaner times, would enact 300-500 new laws so, 11 months in, this 116th Congress could easily go down in the record books as the least productive in 40 or 50 years. “Even before the [first Trump] impeachment hearings, Congress had become political theater. Members no longer deliberate and reach a compromise on important legislation, as had been done from the founding of the republic, but instead settle into their fixed party trenches, making speeches and taking only the votes that would help them win the next election. Public policy is no longer about finding the consent of the people or solving big problems.”

This political theater has only gotten worse. It is most pronounced at televised congressional hearings filled with hot air and little follow-up legislative action. The circus embraces both sides of the political aisle. Viral videos of Republican members of Congress badgering feckless witnesses about the definition of a woman or fruitlessly exchanging barbs with sullen Biden administration figures such as Attorney General Merrick Garland make headlines but lead nowhere.