The Fiction That Is the Constitutional “System of Checks and Balances”….

I took formal civics instruction in 7th Grade and as a Junior in High School in preparation for a graduation requirement: the Citizens’ Civic Exam. Nearly everyone in the country did in the early 60’s. These tests became common throughout the country in the wake of the Great Depression and WWII. Today a handful of states still require this.

I think it is a good idea for those born here to be able to prove they have the knowledge of how the government operates that immigrants must show when seeking U.S. citizenship. Misguided education “reform”, “a deemphasis on patriarchal structures” and the near death of the teaching of “political and economic history” along with a real effort by the political parties to dumb down and disengage the electorate, have resulted in fewer than 6 states requiring an independent and rigorous test of citizenship readiness.

Neither the hallowed phrase “separation of powers” itself nor “checks and balances” appears in the text of the U.S. Constitution. Nor does the word “oversight.” Nor does the word “coequal.” The Constitution is a document that barely defines the scope of the judicial branch at all and so deficiently defines the powers of Congress, the presidency, the states and the federal government that we have spent the better part of two and a half centuries fighting about it. Today that fight places the future of our democracy center stage. The fundamental problem is that those vaunted “checks and balances” depend on the cooperation of the branches and the acceptance of the fundamental principal that an overly mighty branch is accountable to the other branches.

Even at the high water of civics testing the core of much of what we think is so really is not.

The separation of powers is so inadequately outlined that James Madison devoted Federalist No. 47 to critiques that the U.S. Constitution insufficiently divided power between the different branches of government. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny,” he wrote, somewhat defensively.

He also noted that these powers cannot be entirely separated. He wrote in Federalist No. 48 that the separation of powers as envisioned by the Constitution “does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other.” In other words, the separation of powers by its very nature involves, for instance, granting some powers to Congress over the executive branch and vice versa. Or as legal scholar Nat Stern argued in a 2016 law review article, the “maintenance of separation of powers and the checks and balances that accompany it is not a self-executing scheme.” It requires constant interplay between the branches, with the Supreme Court acting as the ultimate arbiter of power’s boundaries.

Never has that been more obvious than today. The failure of the separation of powers scheme can take three forms. One is a branch claiming for itself powers that are clearly granted exclusively to another, as with President Trump taking money that Congress authorized for one purpose and using it for something else entirely (dipping into the defense budget to build a border Wall on his authority.)  The failure of one or both of the other branches to simply fail to use their authority to check the others when called for (often cited in reference to recent court decisions that defy both the principle and precedent in the law. And as an ancillary idea….when one branch overstepping its authority is validated by another branch rather than blocked, as when the Senate majority today will not even consider concerns about presidential action.

Due to a combination of Republican scheming, Constitutional hardball and hyper-partisanship, we are actually experiencing all three of these failures simultaneously. On the one hand, a sharply divided country characterized by hyper-partisanship means that Congress is incapable of exercising its most important powers over the president. It is clear that unless one party captures 67 seats in the Senate, an impeached president will not be convicted, and stepping back, without similar margins in the House, the president cannot be even be impeached. I would add that day to day vetoes will almost never be overridden. In and of itself, this is an invitation for the president to exercise what Madison called “overruling influence” over the other branches. Who or what will stop him?

It is the judiciary that is supposed to rein in attempts by both Congress and the president to overstep the boundaries of their respective authority. And it is here where we have arrived at the most dangerous features of Trumpism and the long-term efforts of the Republican party to politicize the courts to their advantage.

The president has frequently attacked the legitimacy of the federal judiciary when it issues decisions he doesn’t like. When a district court judge named Haywood Gilliam, Jr. blocked Trump’s attempt to use national emergency powers to reallocate money for the border wall, the president called him “another activist Obama appointed judge.”

More dangerously, Vice President Pence recently unveiled plans to ask the Supreme Court to strip district and appellate courts – many of which still have a majority of justices appointed by Democratic presidents despite the GOP’s furious efforts to fill vacancies (usually with right wing zealots and often with those undeserving of appointment based on their records) as quickly as possible –of their ability to issue nationwide injunctions. The president and his allies want to prevent all but the Supreme Court itself, which only hears a tiny fraction of all cases appealed to it, from interfering with the administration’s dubious and rampant exercise of executive authority.

Of course, that court’s majority was obtained by denying a Democratic president the right to fill a vacancy, a profound violation of the judiciary’s role in American democracy, since faith in the courts depends on the public’s estimation that they are staffed fairly. And Trump’s loading of the lower courts with baby-faced, Federalist Society ideologues was itself made possible by Mitch McConnell’s decision to halt nearly all of Barack Obama’s nominations in 2015 and 2016.

So what we are seeing looks less and less like the separation of powers as envisioned by the architects of the Constitution, and more like a creeping seizure of power by the Executive Branch.

We think that this cannot happen here only because the idea that the Constitution created an easy system of checks and balances is so deeply ingrained but this is a lie. We have had a sense of false security before (as when Nixon turned to a conspiracy to ensure his reelection or when FDR promoted the imprisonment of Japanese families in WWII).

The fact is that many of the “Constitution’s checks”, though, exist as customary behaviors, precedent based prior action and a dependence on legal interpretations – like oversight powers – that can be set aside by courts friendly to the president, who would then effectively be beyond any kind of democratic accountability save for the next election. A high court which owes its ill-gotten majority to that same president, takes away the power of lower courts to halt unconstitutional laws, and then issues decision after decision that makes it difficult if not impossible for the opposition to actually win elections would soon function as a kind of Guardian Council that wields all of the real power in Iran, or a Mandated Single Party Dominance in China, or the settling of all real power in the hands of an authoritarian and token democratic governing structure as in Russia with the executive branch as the de facto Supreme Leader.

Most political scientists will tell you that a vast and problematic expansion of executive power significantly predates the Trump era. But the president’s and his principle external and internal allies’ aggressive maneuvers threaten not just to somewhat weaken Congress in relation to the executive branch but rather to call into question the basic viability of the Constitution’s division of powers. That is why the Supreme Court’s decisions in the matters regarding President Trump’s arrogation of authority to himself and his administration are among the most important in the nation’s history. The future of much more than my lesson plans depends on it. I am not confident that it will rise to the challenge……not at all certain.