Is America's system of checks and balances working?
The morning after Donald Trump was elected president, Eric Schneiderman, the Democratic attorneygeneral of New York, summoned his raddled senior lawyers to a war council. Seated in his unfussy 25thfloor office in lower Manhattan, Mr. Schneiderman told them to assume Mr. Trump’s brutish campaign pledges were in earnest, and to clear their desks for action.
While the president-elect was digesting his victory in Trump Tower, five miles up the road, Mr. Schneiderman put scores of the 650 lawyers at his disposal on Trump watch. They started trawling through his campaign statements and preparing legal defences against the assaults he had promised on immigration, consumer protection and climate-change policy. With the Republicans who control Congress apparently unwilling to hold Mr. Trump to account, Mr. Schneiderman feared that Democratic attorneys-general might have to act as a thin blue line of resistance to an authoritarian president.
Mr. Schneiderman, a small man who speaks fast and wastes few words, already understood Mr. Trump’s capacity for rule-breaking. In 2013 he sued Mr. Trump over the fleecing of students at Trump University, a bogus training scheme for would-be property moguls. In response, the tycoon alleged malicious prosecution and sued him for millions of dollars. In 2014 the New York Observer, a newspaper owned by Mr. Trump’s son-inlaw and adviser, Jared Kushner, ran a lengthy hatchet job on him. “I did not realise it at the time,” he says, “but I was getting a preview of the scorched earth approach he takes to opposition.”
Ten weeks into his term, Mr. Trump is behaving much as Mr. Schneiderman predicted. Among other affronts, he has tried to discredit the electoral process by making false claims about illegal voting and has peddled false allegations that Britain spied on him. He has failed to disengage convincingly from his business interests, or reveal the extent of them. He has signed cruel and amateurish immigration rules and, when they faced legal challenge, argued that his border policy was no business of the courts. According to the fact-checkers at the Washington Post, Mr. Trump uttered 317 “false or misleading” statements in his first 63 days as president. “It’s been clear since he took office”, says Mr. Schneiderman, who joined the attack on the immigration rules, “that this president has less regard for the rule of law and precedent and traditions than anyone in recent memory.”
Yet although Mr. Schneiderman’s estimation of the threat Mr. Trump poses appears well judged, his sense of America’s vulnerability now looks pessimistic. The failure of the Republicans in the House of Representatives on March 24th to pass a health-care bill on which Mr. Trump had staked his image as America’s closer-in-chief shows that the president cannot carry all before him. A vigorous repulse to his excesses from journalists, NGOs, companies and millions of protesters, as well as the states, has proved additionally inconvenient. America’s constitutional checks and balances appear to be holding up better than many feared. The defeat of the American Health Care Act (AHCA), it must be admitted, was hardly a textbook illustration of James Madison’s constitutional ideal that presidential ambition be frustrated by the powers of Congress. The bill’s aspiration, to begin the process of repealing Barack Obama’s health-care reform, known as Obamacare, is widely shared among Republicans. Under Mr. Obama, House Republicans futilely voted to repeal Obamacare more than 50 times. Getting rid of it was one of Mr. Trump’s main campaign pledges. The 30-odd right-wingers, known as the House Freedom Caucus, who opposed the repeal bill, causing Paul Ryan, the Republican Speaker of the House, to withdraw it, intended no rebuke to Mr. Trump. Many caucus members admire him. Their target was Mr. Ryan, whose pragmatism they abhor: they felt his bill, which they derided as “Obamacare-lite”, would not sufficiently reduce federal subsidies which help the poor buy health insurance.
NOT QUITE WHAT MADISON HAD IN MIND
Regardless of their target, they dealt a blow to Mr. Trump. He has promised to end the legislative dysfunction in Washington, DC, with his dealmaking skills. In the case of the AHCA, these consisted in threatening to launch primary challenges against his fellow Republicans unless they passed a bill which he appeared not to understand very well (“Mark Meadows, I’m coming after you,” he told the caucus’s North Carolinian leader, maybe jokingly). Perhaps he will recover some of his lost face, as Bill Clinton did after suffering his own health-care reform foul-up early in
his presidency. But Mr. Trump will have to acquire better negotiating skills. He could also do with lifting his approval ratings; according to polling by Gallup, only 35% of Americans think he is doing a good job, which is unlikely to strike fear into Mr. Meadows.
The debacle has forced Mr. Trump to consider wooing Democratic congressmen (there is talk of him linking his tax reform plans, of which Democrats are sceptical, to his infrastructure plans, which they like), which would require him to moderate his behaviour. Some Republican senators, who have longer terms and more mixed electorates than their colleagues in the House, are already demanding he do so. Though the AHCA defeat did not in itself augur better congressional oversight of Mr. Trump, the spectre that haunted Mr. Schneiderman—a unified Republican government uncritically supporting a rogue president—is looking less threatening.
LAWSUITS, SATIRE AND SOCIAL MEDIA
The courts have provided a more straightforward check. Mr. Trump’s immigration rules appeared to be an attempt to honour his campaign promise to keep out Muslims; they were disguised as counter-terrorism measures against high-risk nationalities in an effort to evade the constitutional bar on discriminating on the basis of religion. Both edicts were challenged by broad coalitions of states, NGOs and private firms and subsequently stayed by judges on procedural and constitutional grounds. The president impugned the legitimacy of the first obstructive beak, James Robart—a George W. Bush appointee whom Mr. Trump described as a “so-called judge”. Even his own nominee to the Supreme Court, Neil Gorsuch, a Coloradan jurist, thought this too much. “When anyone criticises the honesty, the integrity or the motives of a federal judge, I find that disheartening,” he said during his Senate confirmation hearing on March 21st.
The media, leaky bureaucrats and the millions who have flocked to rallies against his presidency (which, though dwindling, are still widespread) have provided such a barrage of extra-constitutional scrutiny that some think a new system of accountability is emerging. “We’re seeing a vastly expanded definition of checks and balances, and they seem to be working,” says Alan Dershowitz, a legal scholar. In a world worried about the rise of fake news, the best coverage of Mr. Trump’s administration has been tremendous. The New York Times and Washington Post have had weekly scoops about the peculiar chumminess between its senior members and various Russians; the scandal has so far forced Michael Flynn to quit as national security adviser and Jeff Sessions, the attorney-general, to recuse himself from his department’s investigation into allegations that Mr. Trump’s team colluded with Russian hackers during the campaign. Those revelations have also made it harder for Republican congressmen to ignore the issue, as some, including Devin Nunes, who heads the House intelligence committee, would clearly prefer (see article).
Honed by decades of growing partisanship and low expectations of congressional oversight, the response to Mr. Trump from NGOs, left-leaning and otherwise, has been similarly impressive. The American Civil Liberties Union, which sued the administration over both sets of immigration rules, received over $24m in online donations over the course of a recent weekend, more than six times what it normally expects to collect online in a year. For some, this is a continuation of previous struggles; to brief reporters on its plans to resist Mr. Trump one environmental group dusts off a history of its (broadly successful) legal stand-offs with Mr. Bush.
Mr. Dershowitz also points to less organised checks, including critical commentary on social media, disapproving foreign allies and merciless late-night comics: Mr. Trump has perked up American satire and the career of Alec Baldwin (pictured). “It’s a more transient, not predictable or reliable, not visible or transparent system, which has its own dangers,” he says. “But in my view it will be strong enough to be a sufficient check on this presidency.”
STILL EARLY DAYS
It is a sad reflection of the state of America that a quasiconstitutional role for “Saturday Night Live” could seem reassuring. The system that the founders created as a way for the different branches of government to counter each other’s excesses should not need shoring up by a posse of bloggers and disloyal civil servants. The constitutional frailty this reveals, and of which Mr. Trump’s election is to some degree symptomatic, has in fact been evident for some time.
It is over four decades since the historian Arthur Schlesinger warned, in “The Imperial Presidency”, of a post-war power grab by the executive branch “so spacious and peremptory as to imply a radical transformation of the traditional polity.” The book was a hit, but did nothing to interrupt a steady flow of powers to the White House which has continued under all the presidents since. As the executive opened up new domains for itself in setting pollution standards for industry, overseeing banking and even ordering the country to war, a clear congressional prerogative, the presidential bureaucracy ballooned.
As it grew, it became increasingly politicised; under John F. Kennedy, 196 presidential appointments required Senate confirmation, now 1,212 do. And it became more centralised. In the 1930s Congress magnanimously permitted Franklin D. Roosevelt to maintain a staff of six “presidential assistants”; recent presidents have commanded an army of over 500 White House staffers, whose mission is to ensure the government bends to the president’s will, and that he gets all the credit when it does. This has transformed the character of government, from a semblance of well-advised policymaking to a relentless effort to fulfil presidential campaign promises.
A SPACE FOR AUTHORITARIANISM
At the expense of Congress, recent presidents have also assumed additional powers over foreign policy and civil liberties. In doing so they risk being checked by judges. But they have mitigated that possibility by assembling, in the office of the White House counsel, a battery of ingenious, Supreme Court-quality lawyers; Mr. Obama employed almost 50. The result has been a proliferation of contentious legal precedents, extending the authority of the president, which in unscrupulous hands could amount to a toolkit for tyranny. Following Mr. Bush’s and Mr. Obama’s example, the
A COMBINATION OF VENGEFUL PARTISANSHIP, INTERNET-BASED ALTERNATIVE REALITIES AND THE PRIMARY SYSTEM OF NOMINATING CANDIDATES, WHICH PROMOTES HARDLINERS, IS TILTING AMERICAN POLITICS TOWARDS EXTREMISM
president can order American citizens to be killed secretly overseas, detain foreign prisoners indefinitely without charge and try them on the basis of evidence that the state will not divulge. Despite spasms of concern, both liberals and conservatives have applauded this executive power grab. “I want to strengthen the current Democratic president,” said Newt Gingrich, when he was a bitterly partisan Republican Speaker of the House under Mr. Clinton, “because he is the president.” Scholars of both stripes have often argued that the risks of overreach were justified by the president’s democratic prerogative to fulfil his mandate. The growing dysfunction in Congress, which has seen its lawmaking and oversight give way to shouty tribalism (for which Mr. Gingrich deserves much blame) has meanwhile made that conclusion seem more natural. For if Congress will not pass laws, how else is the country to be governed?
These constitutional evils reinforce each other. Congress, a body the Founding Fathers considered so dangerous that it needed splitting in two, is in its demoralised state especially susceptible to unthinking party allegiance. This has in turn worn away many of the democratic norms upon which the checks and balances depend. Despairing of Senate Republicans’ use of the filibuster to block Mr. Obama’s appointees, for example, the Democrats scrapped the measure in 2013, except in the case of Supreme Court appointments. Now the Democrats are in the minority, vowing to block Mr. Gorsuch, and the Republicans are likely to remove that last defence of scrutiny by the minority party in federal appointments.
At the same time, a combination of vengeful partisanship, internet-based alternative realities and the primary system of nominating candidates, which promotes hardliners, is tilting American politics towards extremism. Put this together with the growth of executive power and the fraying of constitutional checks on it and the risks of something going seriously wrong in the White House are obvious. In 2010 Bruce Ackerman, a Yale legal scholar, predicted it was only a matter of time before America elected a “charismatic president to politicise the bureaucracy and run roughshod over the rule of law”.
In this wider context, the constraints on Mr. Trump look less reassuring. His presidency becomes a predicted step in a process of democratic decline which his unscrupulous leadership is likely to accelerate. To arrest that decline would take substantial reform, with new checks on the executive, a reinvigorated Congress and political parties freed from the thrall of hardliners—all unimaginable today. So it is appropriate to ponder how much damage Mr. Trump could do, even if he remains constrained by the forces Mr. Dershowitz and others find comforting.
Most of his recent frustrations have been self-inflicted, which is in a way reassuring. Though Mr. Trump is sometimes compared to the White House’s last big rule breaker, Richard Nixon, he appears much less competent. Nixon was a skilful, hardworking criminal; Mr. Trump is a blowhard who even now seems unaware of the magnitude and complexity of the office he holds. Still, he and his advisers will get better at using the presidential toolkit, including its legal precedents and firepower. In the event of a threat to national security, for example, Mr. Trump’s appetite for power and desire to be vindicated over his Islamophobic rhetoric could produce dire results.
OH, FOR THE DAYS OF THE SNUFFBOX
The Trump team already has plans to bring the presidential bureaucracy to heel. “The administrative state isn’t going to administer itself,” says a senior White House official. One plan, he suggests, is to send “tiger teams into the beast, to ask, ‘How have you implemented the wishes and policies of the president?’” Leakers, beware.
How successful such tactics are may depend largely on Mr. Trump’s political fortunes—which could be much better than many of his opponents assume. Even if his ratings remain low, the realities of a polarised electorate and a favourable electoral map mean that the Republicans may well retain both congressional houses in next year’s mid-term elections. Mr. Trump will also have the chance to nominate over a 100 federal judges, perhaps including a second Supreme Court justice. Both developments could strengthen him considerably. If an FBI investigation into the Russia connection turned up something serious, a Republican congress would still be loth to impeach Mr. Trump. Mr. Trump’s contribution to the decay of democratic norms already appears vast. Each time he badmouths an institution or makes false claims about a predecessor, opponent or peer, America’s democratic framework takes a hit. Some of the damage may be permanent. A show of decency once mattered in American politics; then 63m Americans voted to elect as president a man they had heard boasting of his ability to assault women. It was also recently accepted that a sitting president must publish his tax returns and disengage from his business interests. Mr. Trump, who has done neither, does not appear to have any problem with the profits flowing from his presidency.
As the Washington Post has reported, he has spent almost a third of his time as president at a Trump-branded property, including his Mar-a-Lago estate in Florida, where club members have been treated to the sight of the president urgently discussing North Korean missile launches over salad. Because another of his presidential haunts, the Trump International hotel, a short walk along Pennsylvania Avenue from the White House, is also popular with foreign dignitaries, Mr. Trump has been sued over an obscure clause of the constitution that forbids public servants from accepting fees or gifts from a foreign state. Some legal scholars have, rather valiantly, cited as precedent Benjamin Franklin’s seeking Congress’s approval before accepting a jewel-encrusted snuffbox from the king of France as a retirement gift. The distance and obscurity of the precedent illustrates the main difficulty of using the law to restrain the president’s behaviour. No one has ever seen anything like it. Perhaps Mr. Trump will be adequately constrained nonetheless. The reassuringly trenchant responses to his excesses from the judiciary, states, bureaucracy and NGOs suggest a democracy more vital than some fear. It might even one day seem ridiculous that a figure as unserious as Mr. Trump could have seemed so threatening. But even in that best case, it will take something more to restore America’s democratic system to a more foolproof state. It will require, more than million-man marches or steadfast judges, a degree of national consensus on the way forward—which is the very thing that America most conspicuously lacks.
TO RESTORE AMERICA'S DEMOCRATIC SYSTEM TO A MORE FOOLPROOF STATE WILL REQUIRE, MORE THAN MILLIONMAN MARCHES OR STEADFAST JUDGES, A DEGREE OF NATIONAL CONSENSUS ON THE WAY FORWARD
Not alone in this. It is over four decades since the historian Arthur Schlesinger warned of a post-war power grab by the executive branch. That did not interrupt a steady flow of powers to the White House which has continued under all the presidents since