Tag Archives: checks and balances

The Real Checks And Balances

It always comes back to culture–the paradigms into which we are socialized. We call the color of the sky “blue” because that’s what everyone else calls it. We wear clothing that (usually) covers our genitals because we have been socialized to believe such coverage is appropriate. (I’m waiting for the anti-mask “patriots” to insist that laws requiring such clothing are an assault on their liberties…but I digress.) 

We accept society’s expectations for large areas of our behavior: the side of the road we drive on, what we consider edible, how many people there are in a marriage…(my students are always shocked to discover that–despite the anti-same-sex-marriage insistence that marriage is between “one man and one woman,” in many countries those unions are between one man and two or three women…)

Culture is incredibly important. True, changing a culture is a very slow process, a fact that tends to “bake in” unjust rules and attitudes. But without cultural expectations, we humans would have to make decisions about every aspect of our daily lives. I once heard a lecturer ask why men in certain businesses/professions routinely and unthinkingly wore a patterned piece of cloth around their necks. (A tie.)That expectation does appear to be changing.

All this is to say that most behaviors are not simply the result of explicit laws or rules. We call expectations of many behaviors, especially ethical ones, “norms,” and those expectations are frequently more potent that statutes and ordinances–especially when they guide political behavior.

A recent column from the New York Times is on point.Tim Wu asked “What really saved the Republic from Trump?” Assuming the Republic actually was saved–I worry that the jury is still out–I think Wu makes an important point.

Americans are taught that the main function of the U.S. Constitution is the control of executive power: curtailing presidents who might seek to become tyrants. Other republics have lapsed into dictatorships (the Roman Republic, the Weimar Republic, the Republic of China and so on), but our elaborate constitutional system of checks and balances, engineered largely by James Madison, protects us from despotism.

Or so we think. The presidency of Donald Trump, aggressive in its autocratic impulses but mostly thwarted from realizing them, should prompt a re-examination of that idea. For our system of checks and balances, in which the three branches of government are empowered to control or influence the actions of the others, played a disappointingly small role in stopping Mr. Trump from assuming the unlimited powers he seemed to want.

What really saved the Republic from Mr. Trump was a different set of limits on the executive: an informal and unofficial set of institutional norms upheld by federal prosecutors, military officers and state elections officials. You might call these values our “unwritten constitution.” Whatever you call them, they were the decisive factor.

Wu described the failures of multiple, explicit “checks and balances” over the last four years, pointing out that Senate Republicans mostly allowed Trump to do whatever he wanted. They allowed “acting” appointees who could not have been confirmed to run the federal government. They treated the impeachment process as nothing but a party-line vote. It’s hard to dispute Wu’s conclusion that the Senate “became a rubber stamp for executive overreach.”

Wu identified as “firewalls” what he called the three pillars of the unwritten constitution.

The first is the customary separation between the president and federal criminal prosecution (even though the Department of Justice is part of the executive branch). The second is the traditional political neutrality of the military (even though the president is the commander in chief of the armed forces). The third is the personal integrity of state elections officials.

I had considerable concern about the first of those firewalls under William Barr, but it ultimately did hold; Barr refused to find massive vote fraud where it didn’t exist. And a large number of lawyers with the DOJ protested, quit and otherwise made it clear that efforts to turn the Department into Trump’s personal law firm were a violation of DOJ culture.

Members of the military have been pretty uniformly admirable, and to my great surprise, so have Republican election officials–even in Georgia.

The question going forward is:  how do we sustain and nourish those democratic norms? How do we reinforce a small-d democratic culture, and ensure that future generations share its expectations? I don’t have the answer, but I’m fairly certain it involves a significant improvement in civics education. 

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Evan McMullin Sums It Up

David Evan McMullin–for those of you who have forgotten his brief emergence during the 2016 Presidential campaign– is the former Central Intelligence Agency operations officer and former Republican who ran for President as an independent that year. He is currently the Executive Director of Standup Republic.

In the wake of the shameful vote by Republican Senators in which they refused to call witnesses or demand documents, McMullin’s tweets have been short, not sweet and very much to the point.

Immediately following the vote, he tweeted:

Republican leaders in Congress believe—and privately say—that they fear the country is quickly changing in ways that may soon deprive them of power, and that they must use the power they have now to delay it as long as possible, even by harming the Republic if necessary.

That was followed by other, equally pointed observations.

For anti-Trump Republicans—a small but electorally significant segment—it’s been uncomfortably possible to oppose Trump but remain affiliated with the party, looking instead to more reasonable Republican senators for leadership. The witness vote may mark the end of that for many…

In a single bogus impeachment trial, Senate Republicans will have made Trump’s pursuit of foreign backing and obstruction of Congress unimpeachable. It’s hard to ignore the fact that they benefit from both, especially at a time when they’re facing increasing electoral headwinds….

We’re watching extreme Republican partisanship dismantle the separation of powers.

McMullin also retweeted an eerily apt quotation from Alice in Wonderland, from someone named Stuart Stephens.

 Who are you?” said the Caterpillar. Alice replied, rather shyly, “I—I hardly know, Sir, just at present—at least I know who I was when I got up this morning, but I think I must have been changed several times since then.”

People tweeting responses to McMullin’s observations are primarily former Republicans who share his disgust and dismay, although there are a few comments from folks who clearly think the GOP hasn’t changed–that the party has merely stopped pretending to be something other than the disgraceful collection of sycophants and moral cowards who have made a joke of constitutional checks and balances.

America faces existential questions that won’t be answered until November–and only tentatively answered then.

How many other former Republicans will join the Evan McMullins, David Frums, Max Boots, George Conways and other “Never Trumpers” at the polls? How many genuine conservatives–i.e., those who are neither theocrats nor plutocrats– will join or contribute to the Lincoln Project? 

We keep seeing polls that show Trump with solid Republican support; what we don’t see is how many Republicans remain, given the steady shrinkage of the percentage of voters who still identify with the party. (To belabor the obvious, eighty percent of twenty-two or twenty-four percent isn’t the same as eighty percent of 35 or 40 percent.)

How likely is it that the Democrats will disband their usual circular firing squad and “vote blue, no matter who” in recognition that the future of the nation depends upon ousting the criminal conspiracy that is raping and polluting our country?

And how likely is it that enough “blue no matter who” voters–whether Democrat or Republican or Libertarian or Independent or usually apathetic– will recognize the incredible importance of this election, and turn out in numbers sufficient to swamp the GOP’s predictable vote suppression tactics?

Because make no mistake: Evan McMullin is right when he says the remaining Republicans will use whatever means are at their disposal to cling to power–no matter the damage to America.

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Those Damn Courts Can’t Overrule Me!

Sometimes, only a Yiddish word is capable of adequately conveying the disdain of an insult. Chutzpah is infinitely stronger than gall, its most common English translation. It’s also more earthy than hubris, and more all-encompassing than smugness.

And chutzpah absolutely permeates a measure that has been introduced in the Indiana House of Representatives by  Representative Curt Nisly. Here is the digest of House Bill 1089:

Protection of life. Repeals the statutes authorizing and regulating abortion. Finds that human physical life begins when a human ovum is fertilized by a human sperm. Asserts a compelling state interest in protecting human physical life from the moment that human physical life begins. Provides that court decisions to enjoin the law are void. Specifies the duty of Indiana officials to enforce the law. Specifies that federal officials attempting to enforce contrary court orders against Indiana officials enforcing the law shall be subject to arrest by Indiana law enforcement. Redefines “human being” for purposes of the criminal code to conform to the finding that human physical life begins when a human ovum is fertilized by a human sperm. Makes other conforming changes.

Where to begin…

Ignore, for purposes of this rant, the fact that the only life Rep. Nisly is interested in “protecting” is that of the fetus; if the pregnancy threatens the life of the woman carrying that fetus, evidently that’s just too bad.

There is, of course, the enormous chutzpah displayed by a man with no medical credentials–a man who owns a sheet-metal company–who feels entitled to determine when life begins, and the chutzpah of a person who can never be pregnant dictating behavior to those who can be. (Pregnancy, as people with medical credentials will confirm, is a greater risk to women’s health than abortion. But Rep. Nisly is willing to force all women, whatever their medical or emotional or financial circumstances, to assume that risk. No skin off his nose.)

That’s bad enough, but what really is astonishing about this piece of excrement–what demonstrates both outrageous chutzpah and monumental constitutional  ignorance–is Nisly’s apparent belief that the legislature can pass a bill that overrules the courts and prevents the executive branch from enforcing court orders.

Checks and balances? Piffle.

Separation of powers? What’s that?

The Constitution? If Trump doesn’t have to read, understand or obey it, why should Rep. Nisly?

Even in a legislative chamber as overwhelmingly rightwing as Indiana’s, this is highly unlikely to pass. (I use the term “rightwing” rather than “conservative” because there is absolutely nothing conservative about people who don’t want to conserve the values of the Constitution and Bill of Rights.) Even our legislature’s dimmer bulbs aren’t likely to endorse a measure that simply ignores our country’s entire legal structure. But you have to ask yourself: who votes for the sort of ignoramus who would propose a bill like this?

And what sort of ego–what monumental amount of chutzpah–does a person have to have in order to run for public office without bothering to understand the government he wants to be part of?

Oh yeah…

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Blame The Courts

What’s that old saying? The enemy of my enemy is my friend?

 Over at Dispatches from the Culture Wars a few days ago, Ed Brayton actually endorsed a theory offered by Jonah Goldberg.

Both Goldberg’s column and Brayton’s comment on it were offered in the run-up to Trump’s demand that he be given broadcast time to address the nation about the “crisis” at the border. Both predicted that Trump would declare a “national emergency” entitling him to ignore Congress and build his ridiculous wall.

As we now know, during that broadcast Trump simply reiterated his previous, fabricated “reasons” for building the wall. But he has continued to threaten the tactic.

Goldberg noted that such a move would be contrary both to common sense and the rule of law.

Do we really want to establish the precedent that the president can simply declare “It’s an emergency” like some magical incantation and then completely bypass property rights and the will of Congress just so he can fulfill a campaign promise that, if Sam Nunberg is to be believed, began as a consultant’s gimmick to get the candidate Trump to talk about immigration and what a great builder he is?

Moreover, if Trump actually attempted to use the military to seize private land, spending money Congress did not authorize, think of what the news cycle would look like, not from Trump’s perspective but from the perspective of other elected Republicans. Assuming that the Supreme Court or Congress didn’t stop him — a big assumption — would you like to run for office defending hourly images of armed U.S. troops kicking in doors or rolling out concertina wire? Is it beyond imagining that at least one Texas or Arizona rancher would get shot defending his property?

According to Goldberg, the theory then circulating in Washington was that the White House was fully aware that an order of that sort would generate multiple lawsuits and would likely be blocked almost immediately by the courts. That–in their view–would be the best of all possible worlds; it would extricate Trump from a box of his own making. He’d be able to tell his base he’d done everything he could, but his plan for America’s safety had been blocked by those terrible judges.

The reason this scenario seems so plausible is because such a patently illegal declaration would mimic a dishonest and destructive strategy that is pursued with some regularity by legislators at all levels of government. They can pass a bill they know to be unconstitutional, placating the constituents who want it, secure in the knowledge that the courts will bail them out.

I still remember a long-ago conversation with a student in one of my graduate classes, who happened to be a State Representative. He had just voted for a bill requiring schools throughout the state to post the Ten Commandments. I knew he was fully aware that such a law would violate the Establishment Clause, and I asked him why he had voted for something he knew to be unconstitutional. He replied that the “folks back in Mayberry” would be angry if he’d voted no, so he’d decided to “let the courts take the heat.”

There are a number of problems with that strategy. It rewards moral cowardice, and it feeds hostility to the judiciary among people who don’t understand the constitution, the function of the courts, or checks and balances.

And eventually, if Trump and the GOP get their way, pretty soon we won’t have competent, principled judges on the federal bench who are willing to “take the heat” in order to protect the constitution from cynical legislators pandering to constitutionally-illiterate voters.

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An “Existential Moment”

One of the political scientists whose work I follow is Thomas Mann. Mann, a Democrat, has received numerous awards during a distinguished career, but he may be best known for his collaborations with Norman Ornstein, who served in Republican administrations. Their book It’s Even Worse Than It Looks documented the radicalization of the Republican Party and received a good deal of publicity.

Mann has a recent commentary on the Brookings website, in which he characterizes the election of Donald Trump as an “existential moment” The lede sets out the nature and extent of that moment’s challenge:

His candidacy, campaign, victory and actions halfway through the transition to governing, heretofore unimaginable, pose a genuine threat to the well-being of our country and the sustainability of our democracy.

As I write, the immediate concerns are the president-elect’s reactions to the Russian cyber attacks on the Clinton campaign; his refusal to takes steps to deal responsibly with the massive conflicts of interest his businesses pose to his conduct of his presidency; his designation of a prominent white nationalist as his chief political strategist and a trio of unlikely appointees to lead the National Security Council team in the White House who appear to lack the personal qualities essential to their critical role; a breathtaking contempt for the media evidenced by his refusal to hold press conferences and his Orwellian reliance on tweets and rallies to communicate with the public; and an assemblage of Cabinet nominees characterized mostly (though not entirely) by their inexperience in public policy and their contempt for the missions of their departments.

In the remainder of the article, Mann considers whether our traditional checks and balances-the rule of law, a free press, an institutionally responsible Congress, a vigorous federal system, and a vibrant civil society–are healthy enough to provide the counterbalance that will be required. He is not sanguine about the rule of law.

Trump’s choice for Attorney General was rejected by the Senate for a federal judgeship because of racist comments and has a history as a prosecutor more interested in prosecuting African Americans for pursuing voting rights than those trying to suppress their votes. His White House Counsel was Tom DeLay’s ethics counsel and demonstrated a blatant disregard for the law as chair of the Federal Election Commission. The courts play an equally essential role. The egregious partisan politicization of judicial appointments, which reached a nadir with Senate Majority Leader Mitch McConnell’s unprecedented refusal to even consider Merrick Garland’s nomination to fill the Supreme Court vacancy during the last year of President Obama’s tenure, has weakened the capacity of the courts to fulfill its responsibilities in the face of attacks on the fabric of our democracy.

The free press, as Mann notes and we all know, is in disarray (to put it as kindly as possible). We live in a “post-truth” media environment, surrounded by spin, propaganda and fake news. If the press is our watchdog, it has been de-fanged.

Congress? Mann points out that the “silence of Republican congressional leaders to the frequent abuses of democratic norms during the general election campaign and transition” has been deafening.

The risk of party loyalty trumping institutional responsibility naturally arises with unified party government during a time of extreme polarization. A devil’s bargain of accepting illiberal politics in return for radical policies appears to have been struck.

What about federalism? Can “states’ rights” be mobilized to constrain the incoming Trump Administration? Mann holds out some hope, but ultimately concludes

And yet the nationalization of elections and with it the rise of party-line voting has led to a majority of strong, unified Republican governments in the states, some of which have demonstrated little sympathy for the democratic rules of the game. For starters, think Kansas, Wisconsin, and North Carolina. The latter has just pulled off the most outrageous power grab in recent history, designed to reduce sharply the authority of the newly elected Democratic governor before he takes office.

As many commenters on this blog have noted, and as Mann concludes, it really is up to us.

The final wall of defense against the erosion of democracy in America rests with civil society, the feature of our country Tocqueville was most impressed with. Community organizations, businesses, nonprofit organizations of all types, including think tanks that engage in fact-based policy analysis and embrace the democratic norms essential to the preservation of our way of life. The objective is not artificial bipartisan agreement, but forthright articulation of the importance of truth, the legitimacy of government and political opposition, and the nurturance of public support for the difficult work of governance. It is in this sector of American society in which citizens can organize, private-sector leaders can speak up in the face of abuses of public authority, and extreme, anti-democratic forces can be resisted.

I hope we’re up to the task.

Happy New Year….

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