Checks and Balances: 2017 Style

Trump gets checked

As the ongoing civics lesson that is the Trump presidency rolls into its third week, it has been easy to get caught up in the fast-paced daily events that lead to easy outrage on social media.

The more difficult thing lately, is to sit back, keeping one’s powder dry, ready to stand up for a confrontation that really makes a difference. The question, as citizens, is to figure out where the application of political pressure is most likely to yield results to help reign in perceived abuses. Otherwise, energies get spread too thin.

So-called “checks and balances” are also known as the system of separation of powers enshrined in the U.S. Constitution. The basic idea as it relates to an aggressive Executive branch is that the Judicial and Legislative branches get to weigh in and reverse actions taken by the Executive if they become so motivated.

Separation of powers

Probably the most notorious flash point of Executive power checks and balances right now has to do with the immigration moratorium. Basically there are three ways this can be checked:

  • Actions from within the Executive branch
  • Actions from the Judicial branch
  • Actions from the Legislative branch

One is from the actions of the Cabinet. The people who are sworn in to run the agencies of the Executive branch make an oath to follow the law, not just to do what the President tells them to do. A notable example in history of members of the Cabinet being a check on Executive action was called the “Saturday Night Massacre”, when the Attorney General and Deputy Attorney General resigned in protest of the actions of Nixon surrounding the Watergate scandal.

The operative member of the Cabinet in this case is John Kelly, Secretary of the Department of Homeland security.

A second is from the actions of the Federal Judiciary, or those courts across the United States where lawsuits can be brought under Federal law or under the Constitution. Ever since 1803 and a famous case called Marbury v. Madison, the Federal Judiciary has been established as having “judicial review” of laws and actions by the other two branches. This means that the courts are the final arbiters of what the law is, not the other two branches. Case in point, yesterday the Federal court in the state of Washington issued a nationwide restraining order against the immigration moratorium.

Apparently, the Department of Homeland Security Secretary has heard this, and is at least saying they will comply, for now. The State Department is following suit by “unrevoking” 60K visas that it had reportedly revoked under the immigration moratorium.

How did this go down, exactly? In order to challenge an executive order, someone has to bring a lawsuit saying they were harmed under a law into a United States district court. These are the first rung in a three step ladder of the Federal judiciary. In this case, that someone was the Attorney General of the State of Washington, who brought a lawsuit against Trump and the Department of Homeland Security in a civil action. The complaint lists nine counts, which you should check out for yourself. But in short, the complaint says Trump’s immigration moratorium violates the Constitution in three ways, violates three different Acts of Congress in several ways and it also failed to be implemented correctly in two different ways based on an Administrative Procedure law.

Maybe Trump will just give up, having realized the error of his ways. But the tweet above would suggest otherwise…

Alternatively, Trump could appeal the court order. This means going to the Ninth Circuit U.S. Court of appeals, which has been critiqued as the most liberal of the appeals courts. After that, the case would go to the Supreme Court as the ultimate arbiter.

Trump could try to violate the court order via the Department of Homeland Security. There aren’t a lot of precedents for this so exactly what would happen is under a lot of speculation. But essentially, the court can begin holding specific individuals in the Executive branch in contempt of court, leading in theory to fines and potential jail time.

The last way that actions of the Executive branch are supposed to be checked is by the Congress, via so called “Congressional oversight”. So far not much has happened here:

But in theory, the members of these committees are more specific pressure points. For example, Michael McCaul, Chairman of the House Homeland Security Oversight Committee represents Austin, Texas, a city that got 40-50K participant’s at their Women’s March, which is just under the 59K margin that he beat his Democratic opponent by in the 2016 election. Another way may be to provide assistance to the lawsuit as it makes its way through the process.

Sorting through these tea leaves, I believe, is the key to seeing the “real story” behind the headlines for how to effectively check Trump’s actions that are truly worrisome.