Is Amer­ica's sys­tem of checks and bal­ances work­ing?

The Ukrainian Week - - CONTENTS -

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.


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.


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.”


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.


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


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.


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.


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

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