Checks and Balances: An Election Eve Plea

If you are one of the 90ish% of Americans who will be voting for Team D or Team R tomorrow,* this is mostly addressed to you.

Tomorrow, our long national nightmare is just beginning, whoever wins over. Election returns will start coming in, and – unless Utah gives us the most unlikely upset in American history (or that one guy those two electors in WA do) – either Trump or Clinton will probably be announced as the winner of the 2016 presidential election. If Once the dust begins to settle, Congress does a bunch of terrible things during the lame duck, the Supreme Court returns to nine justices, and the President-Elect is inaugurated, the shrillness of this election season will begin to fade into memory, and normal tribal partisan politics will resume once more.

So I write this now to get out in front of the election returns. Do not forget the lessons of 2016. Demand, whether your team wins or loses tomorrow, that the next Congress and the next President “tyrant-proof” the White House. If 2016 has taught us anything, it is that we are, at any given moment, one celebrity-Twitter-user away from political chaos. And, no matter how firmly and indefinitely you think your party holds onto the reins of power, eventually your team will lose and the other guys will be in charge. No matter who occupies the White House after tomorrow, then, it is imperative that we revitalize the constitutional values upon which the country was founded, upon which we have operated (with fits and starts, to be sure) for over two centuries, and concerning which we have departed, much to our detriment.

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As Conor Friedersdorf pled back in the heady days of March 2016 – while Democrats still felt “the bern” and Republicans had not yet given up hope on possibly nominating someone who wasn’t a demagogic, dictatorial, celebreality sex offender – the White House needs to be reined in:

Before moving into a new house, parents of small children engage in child-proofing. Before leaving the White House, Obama should engage in tyrant-proofing. For eight years, he has evinced a high opinion of his own ability to exercise power morally, even in situations where Senator Obama thought that the president should be restrained. At this point, better to flatter his ego than to resist it. You’ll be gone soon, Mr. President, and for all our disagreements, I think your successor is highly likely to be less trustworthy and more corruptible than you were.

He made the same plea to Congress:

Republicans in the House and Senate, it’s your responsibility to act, too. Many of you are horrified by the idea of a Trump Administration or a Clinton Administration. With a high likelihood that one of those two outcomes will be reality in a matter of months, why not begin reining in the power of the executive branch now, when the possibility of bipartisan cooperation on such a project is at its height?

Of course, no one bothered to do much about this (except for some small efforts to nibble around the edges of executive power back in the summer) – in fact, things went in precisely the opposite direction. This is because neither party is incentivized to do much about expansive executive power. Instead of having a system marked by separation of powers, as our Constitution and its Framers envisioned (so that “ambition” would “counteract amibition” among the institutions of the national government), we now have a system marked by separation of parties, with each side’s team in Congress essentially being little more than partisan shills for the President’s agenda, advancing or defending said agenda depending on whether they are in the majority or the minority.

The President, sitting atop an elaborate decades’-old pyramid of administrative agencies that promulgate reams of regulations every year, has immense power not only to enforce law, but also to make law and adjudicate disputes via appointees operating in federal agencies. As Justice Jackson reminded us so forcefully over sixty years ago:

The rise of administrative bodies probably has been the most significant legal trend of the last century and perhaps more values today are affected by their decisions than by those of all the courts, review of administrative decisions apart. They also have begun to have important consequences on personal rights. They have become a veritable fourth branch of the Government, which has deranged our threebranch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking.

FTC v. Ruberoid Co., 343 U.S. 470, 487 (1952) (Jackson, J., dissenting) (citation omitted). Congress, despite theoretically being the body that deliberates about bills and then enacts laws, does very little of that anymore as agencies have mostly taken over that function, and Congress is essentially powerless over these administrative agencies. The situation is so bad that, to have any effect on stopping rogue agency conduct, Congress essentially has to encourage and rely on private litigants to sue in federal court to enjoin implementation of controversial regulations – oftentimes battling those regulations on flimsy technical grounds, hoping to exploit procedural errors in order to stop massive, substantive legal changes wrought via regulatory maneuvering. Because of the significant legislative and adjudicative power possessed by these regulatory bodies, the President’s cabinet-level nominations to head the manifold administrative agencies are far more relevant to your day-to-day life than who your Senator or Congressperson is – yet most of these government actors are unknown to all but the “insiders’ insider” inside the beltway, and the American people have nearly no say in how these people get selected.

This election, it seems supporters of candidates for the presidency have all built given up hope on legitimate constitutional governance, instead openly discussing how they want their candidate to “use[] the bulked-up power of the presidency to drive” their preferred agenda and to “go it alone in major policy areas” if Congress gets in the way. Left-of-center Vox concluded that “[t]he scope of what [Clinton’s] promising to do by herself is unprecedented from a top candidate for the presidency.” And, of course, Trump has barraged us with a litany of egregious potential abuses of power, from impudently and crassly threatening media critics to vowing to build a wall and make Mexico pay for it (among many, many others).

More disconcerting still are the immense national-security related powers the President now possesses. Between Bush and Obama, there are numerous precedents (and legal memoranda justifying these precedents, penned by their respective Offices of Legal Counsel) in place for any future President: to execute U.S. citizens without affording them due process of law if they are deemed a national security threat; to detain prisoners indefinitely by labeling them as enemy combatants in an undefined and endless “War on Terror”; to engage in surreptitious surveillance of the entire population thanks to the capabilities of the NSA; to drone-at-will anyone (or anything) considered a threat anywhere in the world at any time; etc. Just because we might avoid the horror of the thought of Trump with nuclear codes this time around does not mean we should fail to take precautions now to make sure this prospect does not present itself again in the future. Even far short of this, an individual with a reckless view of America’s role in the world can wreak a lot of havoc without putting a single American boot on the ground (just ask anyone living in Tripoli). It is high time Congress reviews and reconsiders how much latitude the President has via the War Powers Resolution and once again reclaims its constitutional prerogative to be the branch of the federal government that “declare[s] War.”

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As Conor Friedersdorf wrote elsewhere:

Just as the conservative movement is duty bound to grapple with its role in a populist demagogue seizing control of the GOP, establishment centrists ought to grapple with the implicit blessing they’ve given to the extraordinary powers Trump would inherit, and that even the less-risky choice, Hillary Clinton, would abuse.

I would go further. All American citizens have a duty to consider what our inattention, apathy, and willingness to “follow the herd” has led to in Washington. And we all have a duty to demand that Congress begin to take back power that it has delegated away to the Executive for decades upon decades, so that we might have the true representative republic our Constitution prescribes and avoid the prospect of a demagogue taking over the incredibly-powerful and nigh-unbridled Executive Branch.

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I know in the circles I travel in we talk a lot about “Rule of Law.” The idea is that we live in a country where democratically-derived law, rather than a monarch or the whims of a ruling class, provides the supreme authority under which we all live and move. Similarly, oftentimes I hear, as Gerald Ford said in 1974, that we are “a government of laws and not of men.” What most do not know is that this comes from my state’s constitution. In the Massachusetts Declaration of Rights, Part the First, Article XXX, John Adams drafted this paean to separation of powers that remains as powerful now as I imagine it was then:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

Riffing on this, Justice Scalia wrote, in one of his most poignant dissents while on the Court:

The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. . . . Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.

Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting). I do not believe I overstate the matter in contending that there is little left of the “secure structure” he mentions as being vital for the protection of our most cherished rights and liberties.

This election cycle has proved true, perhaps more so than in a long time, Benjamin Franklin’s storied admonition – to wit, that the Framers bequeathed to us “A Republic, if you can keep it.” I fear we keep inching towards the point of no return, and, though it is hard to tell exactly when we might cross the Rubicon, it is definitely out there, and we will cross it if we do not course-correct. This is not how our country is supposed to operate, and we are capable of so much better. If we do not reverse course, sooner or later it will be too late – and we will have no one but ourselves to blame.

 

 

*Sorry, third-partiers, but, despite this historically-bad presidential cycle, we still failed to find an independent candidate who could generate some momentum in the general election and attract enough voters to matter, so we still linger out in the political wilderness, shouting out where it feels like no one can hear us scream

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