Editorial

System of Checks and Balances Just Broke

May 10, 2019

By Arturo Castañares / La Prensa San Diego Publisher and CEO

You can throw out your old high school civics class book because everything we learned about the system of checks and balances in America’s government seems to have broken apart right before our eyes.

As we all know, our representative form of government is based on three separate but equal branches; the Legislative (Congress), the Executive (President), and the Judiciary (Courts).

In general, the Congress is supposed to write and pass laws, the President signs laws, and the Supreme Court decides if laws are constitutional.

Additionally, the Congress has the power to impeach a president for certain crimes, the President nominates appointees for Senate approval, and the courts can strike down laws deemed to violate the protections of the Constitution.

For over 240 years, our country has lived through several wars, two impeachments, one presidential resignation, one presidential election decided by the Supreme Court, and several contentious political battles and Court decisions including Reconstruction after the Civil War, the battle for women’s voting rights, and the 1968 Civil Rights Act.

And through it all, the three branches of government checked and balanced each other to ensure our democracy remained faithful to the democratic principles of our founding fathers.

Through Democratic and Republican administrations, some with their party in control of Congress and others without, somehow we were able to maintain some sort of adherence to the balance of powers without having to resort to political chaos or outright hostilities.

In 1974, when Richard Nixon was in the depth of the Watergate scandal, he tried to obstruct Congress and refused to cooperate. As Congress, and especially his fellow Republicans, finally began moving toward impeachment, Nixon resigned before the House of Representatives took up the articles of impeachment.

In 1998, when Bill Clinton was under investigation by a special counsel, he refused to testify before a grand jury, but later changed his mind before he was held in contempt of Congress for failing to respond to a subpoena. Although he could have stalled or even remained silent by invoking the Fifth Amendment, he decided to testify. The House later voting to impeach him but the Senate acquitted him.

In 2000, when Al Gore and George Bush ended up in a disputed election, the decision went to the Supreme Court. On a 5-4 vote right down party lines, the Court handed the presidential election to George Bush even though Gore received 500,000 more votes overall, but the election was decided without a long court battle. Gore didn’t fight on because he didn’t want to disrupt the inauguration of Bush and hold the country hostage without a president.

In each of these cases, the issues were defused before a true constitutional crisis erupted.
But, during the past two years, things have gone decidedly differently during Donald Trump’s administration.

After the 2016 election, Robert Mueller was appointed as special counsel to investigate whether Russia interfered with the election and to see if anyone in Trump’s campaign had colluded with them.

During the two year investigation, Trump publicly complained about investigation and constantly called it a “witch hunt” and a “hoax”. Republicans in Congress barely concealed their contempt for Mueller’s investigation in protection of Trump. Trump tweeted to witnesses not to “flip” or testify against him.

When the investigation was over, and Mueller did not conclude that Trump was guilty of any crimes, the President and his supporters turned toward a combative approach to dealing with Congress and the public.

In the month since the Mueller report was released, several committees in Congress have moved toward holding hearings to determine if any of the underlying evidence from the Mueller report can provide more evidence of wrong-doing. The committee have requested hearing from several Trump appointees, including Attorney General William Barr and Robert Mueller himself.

But, instead of cooperating, President Trump has instructed everyone in his administration to refuse all Congressional requests for testimony and all subpoenas. They have said publicly they will resist any efforts from Congress to investigate any further.

This week, Trump invoked executive privilege to protect the full Mueller Report from being released, and he also asked Attorney General Barr to keep Mueller from testifying.

Although the President has a right to claim executive privilege for some communications between him and his staff, there has never been a blanket invocation of that right to keep something like the Mueller report hidden from the public.

And never before has any president flat-out refused to comply with Congressional oversight, or to bar his appointees and staff from testifying.

We are in uncharted territory, but this is a learning moment for us all.

We have always marveled at the magic of our democratic system that kept three separate but equal branches of government as checks and balances on the others. We have always regarded our democratic society as a model for the world, where power is peacefully handed from one freely elected administration to another, and our faith rested in our shared belief that the system would withstand political battles and scandals.

But, in 240 years, the system was not really tested as it is being tested now. What we have seen in the past few months is that our system has no real teeth to it, no protections in the short term that can either prevent not resolve a constitutional crisis in real-time.

If the President or someone in his administration defies a Congressional subpoena, we now see that there is no real immediate response.

For example, if Attorney General Barr refuses to testify as he did last week, the only remedy is to refer his obstruction of Congress to the federal prosecutor in Washington, D.C., who, by the way, works for Barr. Never has a sitting AG been prosecuted.

Or, Congress can sue the White House, or the Justice Department, or even Donald Trump himself, and those cases would take years to pursue and would most likely be determined after Trump is out of office.

If Donald Trump refuses to cooperate, the only remedy is for the Democratic-led House to introduced articles of impeachment, but, given that virtually no Republican has opposed Trump and his tactics, the Republican-led Senate would most likely acquit him, so nothing would come of it.

So, here we are, at a perceived constitutional crisis, where two branches of government are at odds, and the third waiting to see if it gets called into action. As long as the president believes that no immediate action will be taken to stop him, he seems determined to pursue an aggressive approach toward Congress, breaking all political norms we all thought were sacred.

Political historians may look back at these times as the turning point where our system of checks and balances was exposed as weak and inadequate to maintain the careful equilibrium between competing political factions. This may be the point where we came to the realization that the system can be misused without any recourse.

Since the founding of our country and the passage of the Constitution and the Bill of Rights, we have believed in the political ideal that no one person or branch of government could run roughshod over the others.

Today, that has proven not to be true. Our country is weaker for it, and the beacon of freedom the world has looked to shines less bright now.

These actions will surely set a standard for future presidents, and will should serve as a lesson to us all. Elections matter. Vote carefully, for the next president will be stronger, bolder, and more likely to go it alone against Congress and the public because there don’t seem to be any repercussions.

Our system of checks and balances is out of whack with no fix in sight. Lesson learned.

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