Why Checks and Balances are Disappearing (and have been for a while)

On Saturday August 8th, President Donald Trump signed an executive order to provide $400 in benefits to those who found themselves unemployed due to the coronavirus (They had previously received $600 in benefits that expired on July 31st.) Furthermore the Executive Order claims to place a moratorium on evictions, foreclosures and student loans as well as provide a deferment in payroll tax to those earning less than $100,000 a year. The order caused massive uproar by Democrats and Republicans alike with Speaker of the House Nancy Pelosi calling the executive order an "illusion" and Republican Senator Ben Sasse of Nebraska calling the executive order an "unconstitutional slop." However, this has been a song that Democrats (and some Republicans) have been singing since the beginning of the Trump Presidency. They believe that, especially after the House of Representatives impeached him, President Trump has attempted to circumvent the authority of Congress by blatantly ignoring the Constitution. They claim that he has attempted to subvert our nation's policy of checks and balances that have stood for hundreds of years. However, President Trump cannot be the only President who has attempted to circumvent congressional authority, nor can he have been the only person to utilize a "broken system." To understand how we have reached a point of vast disagreement over the constitution, we must examine exactly how the system has become broken and how politicians seek to use this imbalance of power to further their agenda.

Several questions arise when we talk about Presidents or politicians attempting to circumvent the Constitution. The first question we have to ask ourselves is: How is the President destroying checks and balances? The Constitution, and its framers, wanted to ensure that the new United States could not fall into the same tyranny they had just broken away from in Great Britain. So, when writing the Constitution, they placed special emphasis on ensuring that the government couldn't amass enough power to oppress its people. Among the several provisions placed in the Constitution, there is the ideas of the separation of powers and checks and balances. The Founders wanted to ensure that no one part of the government could become tyrannical or abusive (similar to what was stated before); so their solution was to break the government into several parts and give them different responsibilities that check and balance each other out (hence the name Checks and Balances.) The Constitution breaks the government of the United States into three branches: The Legislative Branch which is responsible for making the laws, the Executive Branch which is responsible for enforcing the laws, and the Judicial Branch which is responsible for interpreting the laws. Each branch being written and spoken in a specific order, Legislative, Executive, and Judicial, is no accident. The Legislative Branch is given the broadest power in comparison to any other branch and was considered the most important by the founders. The Legislative Branch is awarded the obvious power of writing and creating laws but they are also awarded with the power of raising and lowering taxes, controlling the country's budget, declaring war, providing oversight to the other branches and several other important duties. Compare the vast responsibilities of the Legislative branch to the responsibilities of the Executive branch, and you being to see how much the founders really feared a monarch-like figure. The main powers the Executive Branch is charged with: Executing the laws, vetoing potential laws Congress writes (although Congress can override a veto), and directing the U.S. military.

Now that we understand which responsibilities are allocated to which branch, we have to examine how the allocation of these responsibilities translate to accusations of destroying the Constitution. President Trump received consternation when he declared a national emergency on the border and took money from the Pentagon to fund his border wall. This angered many in Congress as they accused the President of stripping Congress of their right to control the budget (or the power of the purse as it is called.) President Trump also received scorn when he left several international political organizations ( i.e. The WHO, and the Paris Climate accords.) Although the President's reserves the right to create and subsequently leave treaties, it is Congress' right to approve or disapprove them. Several in Congress accused President Trump of circumnavigating congressional authority when he refused to consult Congress before leaving these organizations. Finally we return to the original example of this blog, which was President Trump's executive order to provide COVID-19 aid to those who found themselves unemployed by the economic effects of the virus. Congress again accused President Trump of attempting to circumnavigate Congress' "Power of the Purse" as the Executive order controls how the public will be taxed as well as where certain portions of the budget should be allocated towards. However, with constant accusations of President Trump attempting to crush the enlightenment ideal of checks and balances, we begin to ask ourselves: can President Trump be the only President to attempt these maneuvers?

Many constitutional scholars say that President Trump is not the only President to attempt to circumvent Congress. Presidents long before President Trump have earned the consternation of Congress after being accused of committing unconstitutional acts. President Franklin Roosevelt was one of the first and most blatant violators of checks and balances as he passed a record number of executive orders and created several thousands of dollars worth of federal programs. These programs stripped Congress of their ability to utilize the power of the purse as well as their ability to create new laws as FDR often used his executive orders to shape the laws that governed these organizations. Furthermore, FDR's court packing plan (which was an attempt to add seats and judges to federal courts so that said judges would be loyal to FDR's policies) sparked outrage in Congress as many accused him of attempting to circumnavigate both Congress' authority to confirm judges and the court's authority to interpret laws. Other Presidents like Ronald Reagan, Richard Nixon, Jimmy Carter, and Bill Clinton are often presented as some of the most frequent users of these constitutional subversion tactics. Even President Obama, who utilized Executive orders far less in comparison to other presidents, was accused of attempting to destroy the constitution because he was uncovered to have been using a little know executive ability called the Presidential Memoranda. Although almost identical to an Executive Order, a Presidential Memoranda does not have to be published in the Federal Registrar. This gives Presidential Memorandas the same legal weight of an Executive Order, however; since they are not on the Federal Registrar, they can fall through the cracks of congressional oversight. Although, with several accusations of infractions against the constitution by both parties, we being to ask ourselves how a document regarded as near perfect can be circumvented?

The third and final question often asked concerning presidential authority is: How did the founders allow a mechanism for an all powerful executive to be formed when an all powerful executive is what they feared the most? To begin to answer this question you have to understand that the founders believed that their form of government was foolproof against infractions like the ones discussed in this blog. To ensure that their system of government would stand, they first guaranteed that the Executive Order and the Presidential Memoranda could be invalidated. Although neither the Executive Order nor the Presidential Memoranda requires a vote in Congress, Congress does hold the power to override either mechanism by creating laws that invalidate them. As long as these laws are passed and signed by the President (or if Congress overrides the veto) they have the ability to cancel whatever the writing of an Executive Order or a Presidential Memoranda says. James Madison, often dubbed the "Father of the Constitution," believed that this provision and others would ensure that no one branch could become too powerful. He claimed that all those who are in power attempt to protect their specific responsibilities. He claimed that, through each branch protecting its power from the others, they would ensure that no one branch could become too abusive. However, what Madison failed to anticipate was the emergence of political parties. Due to the fact that political parties in the U.S. weren't officially formed until midway through Washington's Presidency, many of the founders failed to predict that a member of Congress, the President, or a federal judge might allow an infraction of the Constitution if the person making that infraction was a member of their own political party. Madison assumed that allegiance to one's branch would trump all other alligences. However there are several examples where this theory is proven incorrect. Take for instance the political views of federal judges. Although these people are supposed to be considered unbiased interpreters of the law, they are almost always described and labeled by either their liberal or conservative tendencies. Furthermore, Congressional Democrats during the (Franklin) Roosevelt, Clinton, and Obama presidencies were willing to overlook possibly unconstitutional acts because they benefitted their party platforms. Furthermore, Congressional Republicans during the Reagan, Nixon, and Trump Presidencies have also displayed that they are willing to overlook possibly unconstitutional acts by not taking swift legislative action to halt them. We see this in the example of the Executive Order signed on August 8th. Congressional Republicans and Democrats are reported deadlocked on language for a Coronavirus relief bill. This allows President Trump to commit a blatantly unconstitutional act, the signing of the executive order, because the partisan gridlock prevents Congress from creating laws that supersede it.

Although not all Executive Orders are meant to undermine the Constitution, we have seen a startling increase in the frequency of accusations of unconstitutional acts. The ideals of separation of power and checks and balances are what have ensured that the United States is one of the most representative governments in the world. They have prevented the United States from falling back on its original promise to break away from tyrannical Great Britain. However, certain officials and politicians seem to favor allegiance to political parties over the bedrock of American Democracy. Many would rather see their party's platform promulgated into law than protect the core ideals of the Constitution. I beg those who believe their allegiance to a political party is more important than protecting the Constitution to consider this idea: If you continue to bow down to the will of those who purposefully or inadvertently attempt to subvert the Constitution, then the destruction of the government of the United States will continue. As the destruction continues, our current idea of government will continue to crumble and resemble a monarch rather than a republic. Then, as the citizens and politicians of the U.S. continue to cede their representative power, there may not be an avenue to shape party policies into law.

Citations:

Black, E., Columnist, & Eric BlackVeteran journalist Eric Black writes Eric Black Ink for MinnPost. His latest award is from the Society of Professional Journalists. (2019, March 29). Is our famous system of 'checks and balances' breaking down? Retrieved August 10, 2020, from https://www.minnpost.com/eric-black-ink/2019/03/is-our-famous-system-of-checks-and-balances-breaking-down/

Goldgeier, J., & Saunders, E. (n.d.). The Unconstrained Presidency: Checks and Balances Eroded Long Before Trump. Retrieved August 10, 2020, from https://www.cfr.org/article/unconstrained-presidency-checks-and-balances-eroded-long-trump

List of United States federal executive orders. (2020, August 09). Retrieved August 10, 2020, from https://en.wikipedia.org/wiki/List_of_United_States_federal_executive_orders

Olson, T. (2020, August 09). Pelosi slams Trump's executive actions as an 'illusion' in 'Fox News Sunday' interview. Retrieved August 10, 2020, from https://www.foxnews.com/politics/pelosi-on-fox-news-sunday

Ryan, J. (2018, November 16). When do presidents exercise unilateral power? Retrieved August 10, 2020, from http://gppreview.com/2018/11/16/presidents-exercise-unilateral-power/

Segers, G. (2020, August 09). Trump signs measures to boost economic aid but could face challenges. Retrieved August 10, 2020, from https://www.cbsnews.com/news/trump-signs-executive-orders-unemployment-benefits-economy/

Watson, R., & Burnham, J. (2015, September 5). Separation of Powers: A Primer. Retrieved August 10, 2020, from https://fedsoc.org/commentary/fedsoc-blog/separation-of-powers-a-primer

Wolf, Z. (2020, August 09). Analysis: Trump thinks he's been given vast new powers. Now he's going to use them. Retrieved August 10, 2020, from https://www.cnn.com/2020/08/09/politics/trump-powers-coronavirus/index.html