This seems like a timely thing to write about. My ongoing attempt to make up for decades of not caring about politics. In a previous article, I wrote about “checks and balances” and how Trumps use of the Executive Order seemed to violate them. In this article, I want to explore more in-depth the notion of checks and balances and offer some commentary and analysis of where we are today. I apologize in advance to those of you that paid attention in Sixth Grade and learned all of this then. I apparently did not.
The core feature of how our democracy functions is the division of our government into three branches – the Legislative Branch, the Executive Branch and the Judicial Branch. Let’s briefly review what each does.
The Legislative Branch is the U.S. Congress. It consists of two chambers – the Senate and the House of Representatives. Congress has 535 voting members: 435 Representatives and 100 Senators (1). In the interest of being thorough, the House has six non-voting Representatives – Washington, DC, Puerto Rico, American Samoa, Guam, the Northern Marianas Islands, and the U.S. Virgin Islands. (The lack of voting rights for these six districts is a definitely worthy of its own essay). Representatives come from districts apportioned by population, and serve two year terms. California, with the largest population, has 53 Representatives, and there are seven states that have only one Representative (Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming.) (2). There are two Senators elected to six year terms from each state. Congress is charged with enacting laws. The Senate and the House are equal partners in this process and legislation can not be enacted without both. However, each has some unique duties and responsibilities. For instance, the Senate ratifies treaties, approves Presidential nominees, and votes for impeachment. The House initiates revenue raising bills. Congress has been described as the “driving force in American government” and the “heart and soul of our democracy” (3). Additional responsibilities include “…the powers to levy and collect taxes; to coin money and regulate its value; provide for punishment for counterfeiting; establish post offices and roads, issue patents, create federal courts inferior to the Supreme Court, combat piracies and felonies, declare war, raise and support armies, provide and maintain a navy, make rules for the regulation of land and naval forces, provide for, arm and discipline the militia, exercise exclusive legislation in the District of Columbia, and to make laws necessary to properly execute powers.” (4).
The Judicial Branch is responsible for maintaining a system of courts that interprets and applies the law. The Constitution allows for a Supreme Court with judges appointed by the President, and confirmed by Congress. The Constitution is the highest source for laws in the US. Currently made up of nine Justices, the Supreme Court is responsible for making judgments about laws that may differ from the US Constitution. Congress has established District Courts (responsible for Federal cases) and 13 U.S. Courts of Appeals which review appealed District Court cases. (5) Federal judges can only be impeached by Congress and serve no fixed term. This theoretically allows them the freedom to rule without having to worry about public opinion and re-election. Federal courts enjoy the sole power to interpret the law, determine the constitutionality of the law, and apply it to individual cases. (6)
The Executive Branch consists of the President and those to whom the President has given power or authority. The President is both the head of state, and the head of government. (Interestingly, the Vice President is not in the Executive Branch but the Legislative). The President is also the Commander in Chief of the military and the Chief Diplomat. The President signs legislation making it into law, vetoes legislation to prevent it from becoming law, appoints Supreme Court judges and federal judges, and signs treaties. He also appoints 15 Cabinet heads (the 15 departments that make up the Presidents Cabinet are created by Congress, but led by Presidential appointees). These are the 15 Departments (7):
- Health and Human Services
- Housing and Urban Development
- Veterans Affairs
15 Homeland Security
But wait, there’s more. In addition to these Departments, there are other staff organization grouped into the Executive Office of the President. These include – the White House Staff, the National Security Council, the Office of Management and Budget, the Council of Economic Advisors, the Council on Environmental Quality, the Office of the U.S. Trade Representatives, the Office of the National Drug Control Policy, and the Office of Science and Technology Policy. Whew.
There are also independent agencies such as the U.S. Postal Service, NASA, the CIA, The EPA, and USAID. And if that weren’t enough – there are also government-owned corporations such as the Federal Deposit Insurance Corporation and the National Railroad Passenger Corporation.
All in all, there are nearly 1300 people that the President appoints.
I wanted to review all of that really just to provide some background for the real topic which is how these three branches work with and against each other to create the system of checks and balances.
The real question then, is what is the system of checks and balances?
Our Founders realized the problems inherent in a system of unchecked power in government. The Constitution was written to create “…a web of mutually compromising powers woven, in fear of tyrants, around the presidency, Congress and judiciary.”(8)
Theoretically, the three branches make it so that no one branch could become too powerful. Each has the ability to restrain the others in some way. For example, the President can veto a law passed by Congress. Congress can override that veto. The Supreme Court can rule a law passed by Congress to be unconstitutional. The Supreme Court itself is a check because they are appointed by the President. The President is the Commander in Chief, but only Congress can declare war. The President appoints Cabinet Positions, but Congress Oversees, investigates, and makes the rules for the government and its officers. Congress writes the laws, but the Judicial Branch decides what the Congress meant.
This system has worked effectively for a long time.
However, Trump is assaulting the collaborative effort taken by our government that has provided stability for over two hundred years. Yale law professor Bruce Ackerman has surveyed the last fifty years of American government “…and sees the American presidency transformed into a potentially dangerous vehicle for political extremism and lawlessness. (9)
Republican lawmakers, bolstered by hate filled a.m. radio talk show hosts, partisan hacks on Fox News, and grass roots organizations like Concerned Veterans for America (funded by the billionaire Koch brothers (10) ) and the Americans for Prosperity Foundation have spend the last two or three decades creating a hyper-partisan political environment.
I have listened to Conservative talk radio for 20 years. I have always been fascinated by the hate and vitriol they espouse, and like a train wreck in slow motion, I can’t take my eyes off. Only recently have I begun to understand how they play into a larger political mosaic of partisanship.
We are witnessing in real time an attack on the Constitution and the erosion of checks and balances. Trump is the culmination of a Herculean effort on the part of the Right Wing of American politics to create the country in their image. In spite of the fact that only 37% of the country identifies as Conservative. (11) Even worse, only 26% of the country identifies as Republican (12). The long term results of this will be devastating to the GOP, but what are the short term implications? I would argue that in the short term, we are in real danger of becoming a fascist totalitarian state with extreme power being wielded by the Executive Branch, and the other branches being insignificant.
Evidence of this erosion in the Judiciary: with only eight members on the Supreme Court currently – “The court seems to have split into two camps, with the four justices at its ideological center working diligently to deliver unified opinions. The remaining members of the court seem less committed to that project.” (13) This makes it hard for the Court to make judgments. Moreover, with one current vacancy, and the potential for two to three additional vacancies, Trump’s influence could have lasting effect on the Judiciary for 30 or 40 years.
Trump is daily, pushing the limits of Executive Power. He is not just trying to make good on his campaign promises, but he is doing it in spite of the illegality of his promises. (14) He’s already has more than 50 lawsuits filed against him. (15) Although the Judicial Branch can (and will) file stays against his illegal Executive Orders, it could take a year or more for them to appear before the Supreme Court. By that time, he could easily have made so many challenges to the system with subsequent Executive Orders that the suits before the Supreme Court may be irrelevant.
The White House counsel is designed to advise the President on legal issues. With the firing of Sally Yates, Trump has indicated that he won’t listen to anyone who disagrees with him. The fact that the Republican majority Congress is willing to acquiesce to him means there is one less check on the power grab being conduced by the Executive Branch. Additionally, the ease with which the Republicans are willing to circumvent Democratic Party participation in the government by re-writing the rules of procedure (as seen in the nomination process of Pruitt to head the EPA (16)) means that effectively we have one political party.
In three weeks Trump has put a significant strain on democratic institutions. Trump is using Executive Orders to circumvent the Legislative Branch, the Supreme Court is divided along ideological lines and unable to make judgments that require a tie breaking vote, and the Republicans in Congress are playing a dangerous game of appeasing him at every turn and by excluding the Democrats from fully participating in the Legislative process.
Although not a formal part of the checks and balances system, the Fourth Estate – the media, is under constant attack from the Executive Branch. By using disinformation and outright lies the White House has succeeded in casting doubt on the veracity of information coming from the media, to the point of questioning the nature of facts themselves. The Fourth Estate is charged with giving the people of America the information we need to make informed decisions. We count on them to research and fact check so we can make informed decisions in the voting booth.
The final assault on checks and balances is the suppression of the people themselves. Washington State Senator Ericksen has proposed a bill that makes protesting a felony (17). Indiana has introduced legislation to allow the police to “shut down protests by any means necessary” (18) There are as many as eight states trying to pass legislation right now to prevent protests from taking place. Even members of the House Republican caucus voted to issue heavy fines to lawmakers who protest on the floor of the House of Representatives (19).
I leave you with a question. If Trump and the Republicans get their way – there will be no media, no protests, no other parties, and only one branch of government. Where will our system of checks and balances be then?
Daniel Cashman, EAMP, MS (AOM), NCCAOM Dipl. Acupuncture