Checks and Balances

One thing on the ballot in 2020 is the basic concept of checks and balances and with it, the viability of our democracy.

The Constitutional Convention was one of the most divided assemblies ever. There wasn’t even agreement that a new constitution was needed. People who wanted a stronger federal government disagreed with those who didn’t, those who favored a strong executive were opposed by those who opposed ANY executive, small states faced off against big states, northern and southern states, etc. But they all were concerned about the example of the Roman Republic and worried that their Republic might become a tyranny. The solution they came up with was checks and balances.

Despite obvious problems, Madison’s construct of checks and balances has worked remarkably well. The three branches of government have indeed served as checks on each other. There have been periods (the 1870s through perhaps the inauguration of William McKinley in 1897, the 1920s, and the brief “post-Watergate/post-Vietnam” period in the early to mid-1970s) where Congress dominated a series of weak chief executives. There were also presidents (Teddy Roosevelt, FDR, and Lincoln, for example) and periods (the “imperial presidency” period from World War II through the early 1970s) where the president dominated Congress. But the legislative branch has often served as a check on Executive power, and for the most part the federal judiciary has maintained its apolitical stance. People have accepted the results of the electoral college, and the over-representation of small, rural states in the US Senate. The decennial census results and resulting reapportionment of power have worked smoothly, for the most part. Fundamentally, people accepted that Madison’s system was fair and the various branches of government accepted their role in a triangulated government.

From the “Last Great Senate”[1] of the mid-1960s through the late 1970s, when Congress passed sweeping civil rights, safety, and environmental legislation; helped create the national consensus and then cut off funding that brought the Vietnam war to an end; passed sweeping limitations on presidential powers such as the War Powers Act and the National Emergencies Act; and created important investigative committees like the Church committee and the Watergate committee, the Senate has steadily yielded power to the president. It has abandoned or been unable to enforce its control over war-making, tariffs, federal spending, and congressional oversight. Recently, the Senate majority leader has openly conceded that he won’t even bring a matter to the floor until he knows the president will approve. This isn’t  a co-equal branch of government, it’s a minor subordinate bureau under the president.

This erosion of Congressional power comes at a time when there has probably never been a greater need for strong checks and balances. The current president is the first president ever who made no appeal at any time in his presidency to the other party, instead condemning them as “scum” and “traitors.” He has refused visibility into his financial affairs, including a plain, black letter law requirement to release his tax returns. He has repeatedly defied the constitutional construct, citing non-existent national security needs to place unilateral tariffs on our closest allies (normally a congressional prerogative), inventing a national emergency to use non-existent authorities to build a wall along the southern border that Congress refused to fund, refusing to participate in routine congressional oversight by ignoring requests for information and witnesses. He has also used the powers of his office to retaliate against federal career employees who challenged him or otherwise incurred his wrath.

The justice system has been thoroughly corrupted and the courts are under attack as seldom in our history. The Republican judges project has yielded the most ideological judiciary in our lifetimes. Even so, the president has criticized judges, jurors, and verdicts on the rare occasions they don’t follow his wishes, pardoned associates who obstructed justice and lied to investigators on his behalf, and demanded investigations (and even prosecutions) of his enemies. The attorney general has regularly undercut the prosecutors in his own department and launched politically motivated investigations.

If Trump wins, we can confidently expect even further erosion of checks and balances. If Biden is elected and, as seems likely if he wins, the Democrats also control the Senate, it is likely that legislation will be quickly passed to ensure future executive branch compliance with requests for information and to further restrict executive ability to ignore congressional appropriations. But like many aspects of our democracy, the system of checks and balances relies in great part on the three branches acknowledging the powers of the other two. The assault on the system of checks and balances illustrates how vulnerable our democratic systems and institutions are.

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Leon Reed is a former US Senate staff member, defense consultant, and history teacher. He is a five year resident of Gettysburg, where he volunteers with SCCAP and at the Resource Room at the park visitor center; writes military history; and explores the park and the Adams County countryside. He is the publisher at Little Falls Books, a board member of Adams County Habitat for Humanity, and is chairing the Adams County 2020 Census Complete Count Committee. He and his wife, Lois, have 3 children, 4 cats, and 5 grandchildren.

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