Checks and Balances

At Vox, one Lee Drutman argues that our Constitutional separation of powers doesn’t work when one party controls the Presidency, the legislature and the Supreme Court, and that, for this reason, our checks and balances have not effectively checked Donald Trump.

Congress and the President are supposed to have competing interests; Drutman quotes Federalist 51 (“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place,”) and political scientist E.E.E.E. Schattschneider (“The authors of the Constitution set up an elaborate division and balance of powers within an intricate governmental structure designed to make parties ineffective. It was hoped that the parties would lose and exhaust themselves in futile attempts to fight their way through the labyrinthine framework of the government.”)

But instead, according to Drutman, partisans’ interests are connected with those of their President: “Because the president is the only actor in the system who runs for office nationally, he has historically defined the party brand. And because the electoral fate of congressional partisans is linked to the brand of the party, they have a strong interest in going easy on fellow partisan presidents, while being tough on opposing partisan presidents. As a result, separation of powers has long been a dead letter without divided government.

“Think of all the important moments when Congress has meaningfully checked abuses by the executive branch: Watergate, the 1975 Church Committee on wide-ranging domestic spying abuses by the CIA and the FBI, the Iran-Contra hearings. These were all moments of divided government, with Democrats in Congress and Republicans in the White House. Also note: The only two impeachment votes taken in Congress (Andrew Johnson in 1868, Bill Clinton in 1998-’99) came when Republicans controlled Congress and Democrats controlled the White House.”

This isn’t at all true. FDR, with huge Congressional majorities, tried to pack the Supreme Court and got blocked by his own Party. The Supreme Court dramatically blocked Harry Truman’s seizure of U.S. steel mills, which was intended to force settlement of a strike and keep production going. To so drastically overturn a political branch of government, it helped the Court to be able to lean on the fact that Truman was acting without Congress. Someone in the Bill Clinton Whitehouse promised to “roll” Democratic Senator Patrick Moynihan on health care, and instead Clinton got rolled as a Democratic Congress didn’t even bring his bill up for a vote. Calvin Coolidge got tax cuts through his Republican Congress, but his legendary do-nothing Presidency was achieved partly by thwarting Congress: he repeatedly vetoed Republican-passed, proto-New Deal style farm bills.

Drutman isn’t even right about his own key example of Watergate. To remove a President from office, you don’t just need a Congressional majority; you need a two-thirds majority in the Senate. That’s why it was the very Republican Barry Goldwater who famously broke the news to Nixon that he would have to leave office.
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But what about our highly partisan present times? Haven’t checks and balances broken down and allowed Donald Trump to…do what, exactly?

Here, Drutman is pretty vague. One issue he cites is Russia sanctions. Trump has been completely unable to even begin bringing about his desired rapprochement with Russia, which would presumably involve a removal of sanctions and a mutual understanding on Russia’s sphere of influence. Instead, the Republican Congress, by a veto-proof majority, passed a bill increasing sanctions on Russia. The best Drutman can say is that Trump has dragged his feet in applying these new sanctions, and that Republicans haven’t taken some unspecified counter-action. But what we have here is Madisonian executive-legislative friction, where the branches are working at cross-purposes with each other and the President’s major initiative is totally stopped.

The other issue Drutman mentions is Trump’s travel ban. “The conservative Supreme Court gave the administration the thumbs-up on the ban.” True but misleading. The Court allowed the ban by a 7-2 vote, with only two of the four liberals opposed, indicating that legal reasoning or judicial restraint, not partisanship, were largely responsible for the decision. Trump’s campaign proposal was for a ban on Muslims entering the U.S. He then changed it so it targeted several countries, not a religion. Then, for fear that he would still ultimately lose at the Supreme Court, he revoked his initial travel ban and came back with another version that was likely to pass legal muster. The judiciary did constrain Trump. Meanwhile, Trump’s rhetorical war on the liberal wing of the judiciary (“so-called judges”) was completely ineffective, and he never seems to have contemplated simply defying lower-court rulings against his ban.

Drutman continues, “And if the Trump administration succeeds in its efforts to remake the courts by appointing conservative justices, does anybody expect them to challenge the administration?” But Trump’s Supreme Court pick, Neil Gorsuch, made clear that he opposed Trump’s rhetorical attacks on the judiciary.

Moreover, when Democratic Senator Patrick Leahy interrogated Gorsuch on whether an outright, explicit Muslim travel ban would be constitutional, Gorsuch strongly indicated that it would not, while making clear that he could take no stance on the actual travel ban before the courts. Leahy, having apparently gotten what he considered a credible commitment, told reporters shortly afterward that he was “not inclined to filibuster” Gorsuch. (Clearly, this referred only to Leahy’s personal inclinations; as a loyal Democrat, he went along with the Democrats’ filibuster of Gorsuch.)

So even though Leahy was in the minority, and the obvious end-game was a Democratic filibuster of Gorsuch followed by Republicans nuking the filibuster for Supreme Court nominees, the system still didn’t produce a clear Trump loyalist. Similarly, when George W. Bush nominated crony and loyalist Harriet Myers, he had to pull her nomination despite having a Republican Senate.

What else? Trump and his attorney general want to come after sanctuary cities for illegal immigrants, but have been pretty well tamed by the courts. Against the wishes of Trump and Attorney General Jeff Sessions, Congress renewed the Rohrabacher-Farr Amendment prohibiting the federal government for going after medical marijuana in states where it is legal. Since Drutman’s article came out, Sessions has made a move against state-legal marijuana. Republican Senator Cory Gardner of Colorado has retaliated, threatening to block Justice Department nominees. The Senate has also forced Trump to withdraw some unsavory nominees, and Rand Paul may have stopped Rudy Giuliani from being nominated as Secretary of State.
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The first year of unified Republican government, then, has not seen a dominant executive branch and a weak legislative branch. This is why the idea of Trump as a potential authoritarian strongman has taken a back seat among analysts to the idea that Trump is dangerously weak, a view expressed on Vox itself by Matthew Glassman (https://www.vox.com/the-big-idea/2017/12/4/16733450/donald-trump-weak-president-neustadt.)

If you look at the roll-back of Obama’s assertions of executive power, things look even better for the legislative branch. Some of these rollbacks came through the Congressional Review Act, giving them greater permanence than they would otherwise have. On other Obama policies, Trump’s pull-backs may lack the same permanence, but they at least demonstrate that Obama’s government-by-executive-order has its limits and its own impermanence. And Trump of course pulled out of the Paris Climate Accord, which the Obama administration treated as binding without submitting it to Senate ratification (though Trump did not, as conservatives wanted, submit it to the Senate to have them reject it and thereby formally reassert their power.)

The Supreme Court has also dealt its own blows to Obama’s efforts to use the executive branch as an end-run around Congress. In 2016, in a 4-4 decision, it blocked Obama’s DAPA immigration policy.

You could even make a similar argument about Obamacare, the crown jewel of Obama’s legacy. It of course passed through the legislature, and so is was not an instance of executive assertion of power at the expense of the legislature. On the other hand, it could be used as a supporting example of Drutman’s thesis that united government breaks down checks and balances, giving complete control to the President’s faction. And in upholding the individual mandate provision, the Supreme Court proved not up to the task of limiting Congress to its enumerated powers, showing the limits of its own checks-and-balances capability.

But Congress ultimately rectified the Constitutional wrong, repealing the individual mandate, which was perhaps the most controversial provision of Obamacare. At the same time, no faction of the GOP succeeded in ramming through its own comprehensive vision. All in all, there’s a lot of recent vindication for Madison, after all.
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Reading Drutman’s article, I kept wondering what the alternative was. After all, a Parliamentary system unites the legislative and executive branches, allowing the Prime Minister to govern as he wishes. Wilson envied these systems, and progressives from his time on have normally been frustrated with our system for working too successfully in checking grand plans.

Drutman writes as follows: “More recent democratic constitution writers have dealt with this problem through various means. They’ve turned to proportional voting, which creates multi-party systems that require broader coalition building and balanced cabinets. Some countries have even mandated cabinets that are always balanced between competing parties and competing factions or regions. Most democracies also make it easier for the legislature to replace an incompetent executive through votes of no confidence and/or by calling new elections. Impeachment is a clumsy and difficult mechanism.”

Basically, while our Constitution makes a two-party system inevitable, these more advanced constitutions encourage many parties, who must get together to form coalitions. And instead of working in friction with the legislature, the executive can do what he wants until the legislature votes him out.

But their coalitions are no broader than the ones American Presidential candidates build. The difference is that American candidates put together coalitions of voters, not parties. He either needs to put together a coalition of factions, or appeal to broad national interests and independent, median voters. Either way, you basically need a majority to form a government.

In a truly polarized environment, one where there really are only two factions (contrary to Madison’s prediction of countervailing factions in a geographically extended republic), the American system won’t work as well. But in that case, there will only be two parties that people even want to divide themselves into. It’s hard to see how a system that allows third parties to be effective would help if people have no desire to form them.

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