Support The Bulwark and subscribe today.
  Join Now

Checks and Balances… And Trump

The Trump administration’s radical expansion of executive power is beckoning what the Founders called “the very definition of tyranny.”
January 10, 2020
Checks and Balances… And Trump
WASHINGTON - OCTOBER 20: Volunteers help roll up a giant banner printed with the Preamble to the United States Constitution during a demonstration (Photo by Chip Somodevilla/Getty Images)

The Trump administration recently released communications between the Defense Department and the White House about the administration’s freeze of military aid to Ukraine. While President Trump’s supporters claim that the aid was withheld out of a legitimate interest in battling corruption, the documents make clear that by the time the president ordered the hold, the Pentagon had already certified that the Ukrainian military had taken sufficient anti-corruption steps. Furthermore, Defense Department experts warned that unilaterally withholding the aid might be illegal. But that’s not the worst part.

The worst part is that the damning communications were uncovered by a Freedom of Information Act request by Just Security, rather than delivered to the House of Representatives in response to its subpoenas. While corruption in the executive branch is a story as old as the republic, never before has an administration categorically refused to provide witnesses or documents to a House impeachment inquiry.

There’s no shortage of blame to go around for this manifest constitutional failure, starting with President Trump and extending to White House Counsel Pat Cipollone, acting White House chief of staff Mick Mulvaney, and the cabinet secretaries who meekly refuse to testify.

But the blame doesn’t end there, because this isn’t the first unprecedented and unjustified expansion of executive power from this administration.  For over a month, from December 22, 2018 to January 25, 2019, the federal government experienced a partial shutdown because of an impasse between Congress and the president over funds for building a wall on the nation’s southern border.

Prior to the shutdown, the Republican-controlled Senate unanimously passed legislation that, if enacted, would have funded government operations through the end of the fiscal year. But because the bill did not include money for his wall, Trump opposed it. Under pressure from the president, lame-duck Republican House leaders refused to schedule the bill for a vote, passing to Speaker-elect Nancy Pelosi and her fellow House Democrats in the new Congress. Meanwhile, the partial shutdown took hold three days before Christmas, when prior stopgap authorizations expired. “I am proud to shut down the government for border security,” Trump told Pelosi and Senate Democratic leader Chuck Schumer during a testy Oval Office meeting.

Upon taking office on January 3, 2019, the newly installed House quickly passed legislation identical to what had passed the Senate in December. But, deferring to Trump, Republican Senate leaders refused to schedule a vote on the bill, even though it was the same legislation that they had passed in December. With both sides unwilling to budge, government operations remained closed over the sole issue of a border wall.

As public opposition to the shutdown rose and presidential approval ratings declined, budget negotiators crafted legislation that funded the government through the end of the fiscal year and appropriated an added $1.375 billion for border security and fencing. Decrying this amount as too paltry—he had asked for $5.7 billion—Trump nevertheless signed the bill on February 15.

But the president did not stop there. On the same day, he declared a national emergency on the southern border and, using authority designed for urgent action when Congress lacks time to act, transferring an additional $6.7 billion previously appropriated for other purposes to fund wall construction.

As things turned out, a third of this money already had been spent for its congressionally designated purposes. Even so, the remaining transferred funds coupled with the newly appropriated dollars roughly equaled the figure that Trump originally sought but that Congress, acting on a bipartisan basis, had refused to grant. In all, pursuant to the president’s emergency declaration, the Defense Department diverted $3.6 billion previously earmarked by Congress for 127 specific military construction projects in 23 states and elsewhere around the world to build small portions of Trump’s border wall.

How could the president repeatedly flout Congress? Shouldn’t denial of Congress’s core powers of oversight and impeachment insult the pride and honor of every legislator? Didn’t the Supreme Court already rule that executive privilege wasn’t a sufficient defense against impeachment in U.S. v. Nixon?

If we remember anything from high school civics, it is that Congress holds the nation’s purse strings. The Constitution vests all legislative power (which includes the power to appropriate and allocate funds) exclusively to Congress. Didn’t the Supreme Court uphold this bedrock principle of the separation of powers in its 1975 decision in Train v. City of New York after President Nixon tried to impound funds appropriated by Congress?

Congressional commentators have understandably bemoaned the hypocrisy of Senate Republicans during the 2018-19 government shutdown. With equally good reason, court watchers have questioned whether our Supreme Court is healthy and independent enough to prevent a chief executive from getting away with a high-handed claim of emergency authority. Hovering over all of this are two basic questions: What does the Constitution require of the president, Congress, and the courts during the Age of Trump? And what does it require of us?

In the eyes of the founders, the Constitution’s core protections of our liberty had their roots in a strict separation of powers among the branches of the federal government, and between the national government and the states. The Framers made this point over and over again at the Constitutional Convention and during the ratification debates. No principle was more valued by them. None should be more sacred today. The separation of powers is the bulwark of our freedom.

The Constitution itself does not use the phrase “checks and balances” or “separation of powers,” but these ideas animate our founding charter. The cover letter that the Framers sent out with their proposed Constitution, signed by George Washington as president of the convention, proves the point. Reflecting on why the Constitution proposed replacing a feeble one-house Congress with an expansive three-branch government, the letter explained, “The impropriety of delegating such extensive trust to a single body of men is evident—hence results the necessity of a different organization.”

The Framers feared an all-powerful executive no less than an all-powerful legislature. As James Wilson, a leading Framer, warned his fellow delegates, “Despotism comes on mankind in different shapes: sometimes in an Executive, sometimes in a military one.”

The views of those who ratified our Constitution are no less important than the views of those who framed it, primarily because ratification played out in public and gave the document its legal effect. During the ratification process, as Americans debated the benefits and risks of augmenting the central government’s power, the establishment of inter-branch checks and balances took center stage as the Constitution’s most celebrated feature and principal virtue. This is apparent in the Federalist Papers—the 85 essays written by Hamilton, James Madison, and John Jay in support of ratification that have become an owner’s manual for interpreting the Constitution. Thomas Jefferson went so far as to describe these essays as “the best commentary on the principles of government which ever was written.”

In Federalist No. 47, Madison set forth the essential point: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Democracy alone is not enough to protect liberty, he stressed in essay 48. Emphasizing the need to establish government structures that would guard against an “elective despotism,” Madison wrote that the separation of powers was the proper antidote to despotism: “the government we fought for . . . should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.” This structuring of government powers, Madison went on to explain, was so important that it reflected the “constant aim” of the founding charter.

The Constitution’s “balances and checks,” Hamilton added in Federalist No. 9, “are means, and powerful means, by which the excellencies of republican government may be retained, and its imperfections lessened or avoided.” Echoing the key point of the Convention’s transmittal letter, Hamilton closed the collection’s last substantive essay by warning that the “new and extensive powers” granted by the Constitution “require a different organization of the federal government; a single body being an unsafe depository of such ample authorities.”

Yet the separation of powers has eroded over the past century, to the point that the presidency has come to resemble the feared omnipotent “single body.” Edmund Pendleton, presiding officer of Virginia’s ratifying convention, emphasized the properly constituted role of chief executive. “The President is indeed to be a great man,” Pendleton wrote, “but ’tis only in show to represent the federal dignity and power, having no latent prerogatives, nor any powers but such as are defined and given him by law.”

Highlighting checks placed by the Constitution on the president, Pendleton explained, “He is to be Commander in Chief of the Army and Navy, but Congress are to raise and provide for them, and that not for above two years at a time. He is to nominate all officers, but Congress must first create the officers and fix the emoluments, and may discontinue them at pleasure, and he must have the consent of . . . the Senate to his nomination. Above all his tenure of office is short, and the danger of impeachment a powerful restraint against abuse of office.” These checks would guard against executive excess, Pendleton reasoned, and Virginia’s ensuing narrow vote to ratify proved critical to the Constitution taking effect.

Responding to concerns about presidential authority voiced at the Virginia convention, Madison’s friend and future Kentucky attorney general George Nicholas identified the core question: “Can we trust . . . our liberty to the President?” Nicholas answered, “We do not trust our liberty to a particular branch: One branch has not the whole power. One branch is a check on the other.”

This emphasis on cabined executive authority mirrored the approach of the 1780 Massachusetts constitution, drafted mainly by John Adams. That document declared expressly that, “The executive shall never exercise the legislative and judicial powers. . . to the end it may be a government of laws, and not of men.” Drawn from bitter experiences with a tyrannical king and royal governors, this principle reflected the widely cited counsel of the political philosopher Montesquieu, “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.”

In a widely reprinted editorial published two days after the Constitutional Convention ended, Franklin’s Pennsylvania Gazette warned: “All single governments are tyrannies” beginning with governments “lodged in one man.” Ten days later, a federalist essay in the New York Advertiser hailed the proposed Constitution: “Here the Legislative, Executive, and Judicial Powers are completely separated, exactly defined, and accurately balanced. Here are instituted the wisest checks to ambition in the rulers.” Nothing, these commentators agreed, was more important to ensuring individual freedom.

To all of this, Washington added his heartfelt concurrence. “No man is a warmer advocate for proper restraints and wholesome checks in every department of government,” he wrote soon after the Constitutional Convention to his nephew, the future Supreme Court Justice Bushrod Washington. A few months later, Washington assured his wartime aide, the Marquis de Lafayette, that under the proposed Constitution, federal powers “are so distributed among the legislative, executive, and judicial branches, into which the general government is arranged, that it can never be in danger of degenerating into a monarchy, an oligarchy, an aristocracy, or any other despotic or oppressive form; so long as there shall remain any virtue in the body of the people.” Washington’s closing “so long as” caveat likewise came from his heart and expressed his deepest fear. In a republic, no parchment barriers, no checks and balances, no structural constraints or enumerated rights can protect liberty if the people themselves fail to defend them.

That, in short, is where our republic now stands.

Some of the Framers saw the present-day coming, or at least feared it. During the Constitutional Convention, the most protracted debate over any single issue involved how to structure the presidency. Washington supported strong executive powers. His neighbor and long-time friend George Mason led the opposition, joined by Franklin, Edmund Randolph, and Elbridge Gerry. All four of these key delegates viewed the emerging presidency as the fetus of monarchy, and in the end three of them voted against the Constitution largely based on these concerns.

Franklin shared these misgivings, but he nevertheless supported the Constitution because he assumed that Washington would hold the office and he trusted Washington with power. In his closing words to the Convention, Franklin expressed his faith that the Constitution “is likely to be well administered for a course of years.” But he also worried that the new government would “end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government.” Wisely, he foresaw that responsibility for preserving republican rule and liberty rested less with the leaders than with the people, and that tyranny would surely come if the people became “so corrupted”—so caught up with pursuing their own selfish interests—as to accept it.

Responding to a citizen’s inquiry about what type of government the Constitutional Convention had created, Franklin famously answered, “A republic, if you can keep it.” Divided powers and meaningful checks and balances stand at the heart of the constitutional order. When the executive branch exceeds its constitutional authority, Congress shirks its constitutional duty, or the courts fail to enforce constitutional commands, these institutions place our republic at risk. They tear at the fabric of our Constitution, which provides the only basis for their authority. Worse yet, they threaten the liberty—our liberty—that is founded most of all on the Constitution’s carefully wrought separation of institutional powers.

The easiest and most comfortable response to this constitutional crisis is to blame the other party. Their offenses against the constitutional order are, after all, always either the precedent to one’s own, or the most recent escalation, depending on who has power.

Slightly more ambitious is to blame the latest brood of politicians, who seem to value partisanship and point-scoring over principle and propriety. America today seems to overflow with demagogues, with no statesmen for ballast.

But to blame only the leadership would be to ignore the republican nature of our Constitution. If we are to expect our government to revere the Constitution and its safeguards of liberty, we first must do so ourselves. We have ourselves to blame for demanding more integrity of our leaders than we have ourselves. Our Constitution is corrupted only to the extent that we, the people, are corrupted.

The Constitution’s basic structure is still sound. It just needs some repairs to the foundation.

Edward J. Larson

Edward J. Larson is a Pulitzer Prize winning legal historian and author of the recent book Franklin & Washington: The Founding Partnership.