Checks And Balances Are On Life Support

REUTERS/Joshua Roberts

David Benkof Contributor
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“At least we have checks and balances,” many Americans including conservatives are reassuring themselves these days, despite fear President-elect Donald Trump will enact his agenda freely and perhaps begin to encroach on American liberties, as he hinted during the campaign.

But with last week’s election, most usual checks and balances have deteriorated or collapsed. Here are seven checks – both formal and informal – that won’t protect America should a post-inauguration Trump decide to, well, be Trump:

  1. Congressional Oversight: Sure, Congress can hold hearings to investigate executive malfeasance, reject presidential nominations, and – in extreme cases – start impeachment proceedings.

In the 115th Congress? Don’t count on it.

Approximately 55 percent of the House and 52 percent of the Senate will be Republican. While those majorities sound slim, most Congressional action requires only a bare majority. So President Trump can largely dodge Congressional oversight – unless a minority of dissenting Republicans forges a coalition with Democrats. Which brings us to:

  1. Intraparty Divisions: Don’t overestimate the clout of anti-Trump Republicans. Yes, a few heroic conservatives have consistently opposed Trump both before and after his election, such as Sens. Ben Sasse (R-Neb.) and Jeff Flake (R-Ariz.).

But even most Republican elected officials who openly bucked Trump on Election Day are now sweet-talking him. Rep. Mia Love (R-Utah) and Sen. Lisa Murkowski (R-Alaska) say they are “excited to work with him.” My own Congresswoman, Rep. Ann Wagner (R-Mo.) once denounced Trump’s “predatory and reprehensible” comments about women, but now trumpets a “more prosperous future” under him.

And those who supported Trump (however reluctantly) have now turned sycophantic. Speaker Paul Ryan celebrates Trump’s “perfect tone” after his election. And predictably, Marco Rubio’s on-again, off-again support for Trump is on again.

These Republican suck-ups are obviously currying favor with the demagogue-elect, but they also fear a more powerful force – their own constituents. They know Senate candidates who campaigned on an anti-Trump platform lost their races, and that the incoming president wouldn’t hesitate to support primary challenges to legislators who defy him.

  1. Frequent Elections: At least we have new elections in 2018, right? Well, not until after a likely flurry of legislative victories like the ones presidents usually have during their first two years. And the numbers in 2018 do not look good for Democrats. New House districts will still be four years away, with most of those likely Republican-drawn anyway. Only eight Republican Senators face re-election in 2018, compared to 25 Democrat-leaning Senators. All but one of the former are in heavily Republican states (Nevada is the exception), but several of the latter are in serious red states like Missouri and Montana. Expect a redder Senate in 2018, not a bluer one.

Worse, watch Trump’s team jerry-rig the rules, at the very least by expanding Voter ID laws. Republican-implemented requirements for identification at polling places appear to have helped Trump in Wisconsin and North Carolina. Expect more such laws, which help Republicans at the expense of flouting basic conservative principles.

  1. Judicial Review: Though judges can declare actions of the executive branch unconstitutional, the process is slow and at best can reverse an executive act. There’s no equivalent of “punitive damages” to discourage the president from future malfeasance. A president with unconstitutional aims could take 100 steps that violate our liberties, see half challenged in court, and half of those overturned – and still have succeeded 75 times.

Besides, within a few years many of the judges will be Trump appointees (approximately one in eight federal judgeships is currently vacant). The Supreme Court will almost certainly have a Republican majority once the Scalia vacancy is filled – with more appointments likely.

In addition, Trump has already challenged the impartiality of a judge he didn’t like. Although a president can’t force most hostile judges to recuse themselves, he can undermine trust in the judicial system by poisoning public opinion toward any unfavorable rulings.

  1. Independent-minded Executive Officials: If the president asks one of the two million civilians who work for him to take unconstitutional or otherwise improper steps, they can defy him, right? Technically, yes. However, hierarchical inertia guides many bureaucrats, who will cooperate if their immediate supervisor does. Second, a president with an unlimited reserve of pardons can routinely forgive any executive official who violates the law on his behalf.

Further, we see in Nixon’s so-called Saturday Night Massacre that a president can sometimes get away with firing employees who won’t cooperate with presidential overreach. Or take President Obama’s scandal regarding IRS employees targeting conservative groups for special scrutiny. We don’t know Obama’s role, but it could have been substantial. And eventually many IRS employees did cooperate in violating the agency’s even-handed mission.

Beyond the IRS, the alphabet soup of agencies at the disposal of a president bent on using the presidency to settle scores or break rules is vast. It includes the FBI, CIA, NSA, SEC, DEA, INS, FDA, CDC, NIH, TSA, and the U.S. Mint, not to mention the diplomatic corps and the entire U.S. military. For every hero in the bureaucracy who defies illegal instructions, there will be hundreds who won’t.

  1. State Governments: True, the Division of Powers means many government activities operate on a state level, but on Inauguration Day half the states will have governors and two legislative houses controlled by Trump’s party (only six states will have Democrat dominance). That means Democrats have a real role in governing half the states, though, and I predict they will soon celebrate the very idea of states’ rights they’ve been lambasting as racist for decades.
  1. The Bulwark Against Tyranny: But if things get really bad, Americans have the ultimate bulwark against tyranny, right? An armed populace. Think again. The liberals who consistently mocked the idea that guns protect us from an out-of-control government are also the least-armed political group.

I’m not saying under President Trump these checks and balances, if tested, will all be impotent. But they could be. Our system simply isn’t designed for executives who don’t respect it. And this president-elect has expressed more confusion about and disdain for American democracy than any in history.

At the end of the Constitutional Convention someone asked Benjamin Franklin whether the Founders had designed a Republic or a Monarchy. His answer should challenge us in 2016 – and scare us, too:

“A Republic – if you can keep it.”

David Benkof is Senior Political Analyst for the Daily Caller. Follow him on Twitter (@DavidBenkof) or E-mail him at DavidBenkof@gmail.com.