The Broken Check and Balance

It’s up to Congress to police the executive—but so far, its Republican leaders are placing tribal loyalty ahead of their constitutional responsibility.

Aaron Bernstein / Reuters

Only a country with as much going for it as the United States—scale, resources, location, historic openness to energy and ambition and change—could withstand a national governing structure as ill-matched to current conditions as America’s has become.

The intricate trade-offs and compromises behind the constitutional structures of the 1780s may have suited the fledgling United States of that era—which had a smaller total population than today’s Los Angeles, which ran only from the Atlantic coastline to the Appalachians, which had few international ambitions beyond survival, and which uneasily spanned both free and slave states. Almost every circumstance of today’s United States is different, except, of course, for the ambition of creating an ever-more-perfect Union.

What has kept the country going through these centuries of change is not the superbness of its original rules—which, significantly, have been adopted by few of the hundreds of new governments that have come into being since the American founding. (The closest comparison among surviving governments would be the Philippines, and then Liberia. Mexico tried a similar constitution in the mid-1800s. I argued this point in more detail back in 2010.)

Rather the United States has coped, and overall thrived, through a variety of non-constitutional advantages. These include its favorable placement on Earth, its early creation of mass-education and higher-education networks, its providentially most gifted leaders at times of its greatest crises—Washington, Lincoln, FDR—and a long list of other factors. Among the latter has been a willingness by most political participants, most of the time, to observe the unwritten rules necessary for a democracy’s survival. The losing parties in presidential campaigns have complained, but have let the winners take office. The losing parties in big judicial battles have complained, but complied. The big crises in American governance have occurred in the moments when written-and-unwritten rules have been defied, from many Southern states’ refusal to accept the outcome of the 1860 presidential election, to some Southern states’ refusal to accept judicial rulings on desegregation under presidents Eisenhower and Kennedy.

* * *

The boring name for these unwritten rules is “norms.” Boring or not, they’re at the center of the potential crisis over Donald Trump’s performance in office. By the letter of the Constitution, and by the unwritten norms of American separation-of-powers governance, the main restraint on an overreaching, dishonest, or incompetent executive is a resolute legislative branch. But today’s legislative leaders—Mitch McConnell and his slim Republican majority in the Senate, Paul Ryan and his large Republican majority in the House—are ostentatiously refusing to play that check-and-balance function. They are operating as members of a tribe, the Republican tribe, rather than as components of a branch, the checks-and-balances legislative branch. Ryan has not “had time to read” the indictment of Donald Trump’s former campaign chair, Paul Manafort. McConnell wants to concentrate on the “real issues,” namely a tax-cut plan. (As I’ve been typing, I see that Ezra Klein has made a similar argument, on “The Cowardice of Paul Ryan and Mitch McConnell.”)

Because the legislative majority is choosing a tribal rather than a governing role, the checks and balances necessary for democracy have fallen to an ad-hoc group of others. For instance:

  • The Generals: The positive news about foreign policy is supposed to be that a group of flag officers stands between Donald Trump and the next reckless military move. They are of course retired four-star General James Mattis of the Marine Corps and active-duty three-star General H.R. McMaster of the Army, heading the Pentagon and the National Security Council, respectively, and retired four-star Marine Corps General John Kelly as White House chief of staff.

    Mattis—whom I’ve known for decades, and liked and respected—is civic-minded, broadly informed, historically aware. Among all Trump appointees, he has best maintained his pre-Trump reputation and dignity. McMaster, who came to fame with his book about the career military’s failure to live up to its values during the Vietnam War, has walked a fine line, too often dragooned into service to explain away Trump’s lies, threats, or mistakes. With his recent comments, Kelly is either revealing himself as, or under Trump has become, a figure of crude Bannon-style divisiveness.

    But despite their differences, they’re all assumed to be the buffer that stands between the world and a Trump outburst that could lead to war with North Korea, with China, with almost any country you could name except Russia. In the short term, I’m glad they’re on the job. In the long term, their presence and importance is quite an unhealthy sign. This is not how “civilian control of the military” has usually looked.

    Remember why they’re playing this role: “The generals” are on guard against militaristic excess, because Congress has refused to play that role. Ryan in the House and McConnell in the Senate could hold hearings, pass resolutions, put on budget restraints, and in other ways set guidelines to guide and limit most of what a president can do. But they haven’t. They won’t. Thus for now we have the generals—better than nothing, much worse than Congress doing its job.
  • The Judges: The judiciary is of course a written-and-unwritten part of the checks-and-balances system. But federal courts work best and most sustainably when they are not the first resort for bitter political arguments but rather an ultimate referee.

    Many members of Congress, including many Republicans, know that the crude overreach of Trump’s travel bans and other executive orders will eventually force the courts to throw the orders out. (How can I say this? Because I’ve heard it from Republican legislators, as other reporters have. Not for quotation, of course.) But because they’d rather spare themselves the political heat of challenging Trump or making realistic immigration- or environmental-policy compromises, they deflect that political pressure onto the federal judiciary. They know full well that this will deflect the political backlash onto the judges, complete with Trump tweets and Fox segments on the “out of touch” and “unelected” judiciary. That is bad for the country but convenient for the Congress.
  • The Press: The investigative and analytic press is overall rising to the strange challenge of these times. And even in the best of times, the press should have an arm’s-length critical posture toward centers of political power. From the days of the Alien and Sedition Acts onward, government leaders have generally been steamed about the press.

    But most Republicans in Congress know—and those like Bob Corker and Jeff Flake who’ve decided not to run again have suddenly become willing to say, that on the main axes of Trump-press contention—the press is right and Trump is wrong. He does endlessly tell lies. He is temperamentally uncontrolled and intellectually unprepared for the office he holds. Those around him are not “the very best people” and are entangled in clouds of financial conflicts.

    Because Flake’s and Corker’s colleagues mainly remain silent, they abet Donald Trump’s efforts to delegitimize the press and promote his siloed, tribal version of Fox News reality.
  • The Prosecutor: Robert Mueller’s investigators and prosecutors clearly know what they are doing. But relying on governance-by-investigation is not a good long-term democratic model.

    The only thing that could make it worse is Republican equivocation about whether the investigation will be allowed to run its honest course. Paul Ryan minimized his short-term pain by pleading ignorance about the Mueller case. But everyone knows what he is doing (notably including John Boehner, as shown in this delightful new Politico profile). And as David Frum argued yesterday in The Atlantic, any calculation of self-interest beyond the next micro-second should lead Republicans to a more critical approach to Trump:

You need to wonder whether the avoidance of blowback from Fox News in November 2017 is worth the risks hurtling at you in the weeks ahead. The Trump administration’s authoritarian moment is on the verge of materializing. The president seems likely to openly stake a claim to use his position as head of the executive branch to exempt himself from all law enforcement. If the president can never obstruct justice, he can use the pardon power to protect himself and his associates from any investigation into criminal wrongdoing.

By speaking out today, you may dissuade the White House from staking the whole Republican Party to an authoritarian, anticonstitutional position. At a minimum, you protect yourself from answering for it. Nobody’s asking you to be a hero. Just think ahead beyond the next 10 minutes and 10 days to your own interests and future.

* * *

We all live in the here and now—for me, here is London, now is Halloween 2017. But people will look back on this now in a year, in a decade, in a century. Looking back on other times of democratic crisis—on the 1860s,  on the 1880s, on the 1930s, on the 1960s—historians come to harsh judgments of who met an obligation, and who shirked or looked away. The Republicans in Congress have made themselves willfully blind. They will be held culpable for this. It is time for them to see.