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As Executive Power grows, our system of checks and balances erodes

Written By | Nov 28, 2018

WASHINGTON: The American political philosophy is based upon a fear of government power and the need to limit it. The founding fathers achieved this by dividing our government leadership, inserting a system of checks and balances,  It was their fear of government in total control, which initially caused the Founding Fathers to rebel against the arbitrary rule of King George III. Now presidents use Exeuctive Orders to get around the founder’s origina intent.

It is all semantics when the US goes to war

In constructing the Constitution, the founders did their best to construct a form of government with a clear division of powers. The goal always being the protection of individual freedoms. If given the chance,  those founders would shudder at the growth of executive power.  In the Constitution, for example, it is Congress which is given the power to declare war.

The Founding Fathers would be dismayed, but they would not be surprised.

In a letter to Edward Carrington, Thomas Jefferson wrote:

“The natural progress of things is for to liberty to yield and government to gain ground.”

The political thinker who had the most critical impact upon the thinking of the Founding Fathers was John Locke. Locke repeatedly emphasized his suspicion of government power. He believed that if the authorities violate their trust, their regime should be dissolved.

The political tradition out of which the U.S. Constitution grew repeatedly stressed the importance of limiting the sphere of government.

Listen to the men who were at the forefront of the Revolution

The written and spoken words of the men who led the Revolution give us numerous examples of their fear and suspicion of power and the men who held it.

Samuel Adams assertation, at the time, is that:

“There is a degree of watchfulness over all men possessed of power or influence upon which the liberties of mankind much depend. It is necessary to guard against the infirmities of the best as well as the wickedness of the worst of men. Jealousy is the best security of public Liberty.”

Both Republicans and Democrats, when they held power, expanded the role of government and the power of the executive. During the New Deal, when Franklin Roosevelt disagreed with decisions of the Supreme Court, he attempted to pack the Court and make it subservient to him. Ronald Reagan repeatedly challenged government power. However, during his years in office, the government continued to grow.

Politicians do not, after all, seek power in order to dismantle it. Regardless of their rhetoric when they are out of power.

Does President Trump abuse Executive Power

Our current president is no exception and seems to be carrying this tendency beyond what even his most ambitious predecessors were prepared to do. He has told us that he can eliminate “birthright” citizenship by executive order alone.

Without congressional approval, he has imposed tariffs on countries he feels have been unfair. The President says that he was able to instruct the Commerce Department to impose a 25 percent tariff on steel imports and a 10 percent tariff on aluminum as current trade practices were a threat to national security.

But then he has seriously considered using the Justice Department to prosecute his political opponents criminally.

In a November 2017 interview, the President says:

But you know, the saddest thing is, because I am the president of the United States, I am not supposed to be involved with the Justice Department. I’m not supposed to be involved with the FBI. I’m not supposed to be doing the kind of things I would love to be doing and I am very frustrated by it. I look at what’s happening with the Justice Department, why aren’t they going after Hillary Clinton with her emails and with her dossier..”

He has repeatedly attacked our judicial branch when its decisions displease him. He has stood strong on his refusal that illegal immigrants should be allowed into the country.  Citing our immigration laws and Constitution in doing so.

Maybe those checks and balances seem to be working.

Fortunately, he is being challenged in these efforts to expand executive power beyond the confines set by the Constitution, Of course, Democrats will challenge him. The party out of power always finds the use of power by its adversaries objectionable.

However, President Trump faces a more difficult challenge from conservatives, who believe in the Constitution even when Republicans control the White House.

Recently, at the annual meeting of the Federalist Society, the conservative legal group with close ties to the Trump administration, a group of prominent conservative lawyers joined together to sound a note of caution about current trends.

They are urging their fellow conservative lawyers to speak up about what they say are President Trump’s betrayals of bedrock legal norms.

“Conservative lawyers are not doing enough to protect constitutional principles that are being undermined by the statements and actions of this president,” said John B. Bellinger III, a top State Department and White House lawyer under President George W. Bush.
Checks and Balances

The group, called Checks and Balances, was organized by George T. Conway III, a conservative lawyer and the husband of President Trump’s counselor, Kellyanne Conway. In recent articles, Mr. Conway has criticized Mr. Trump’s statements on birthright citizenship and argued that his appointment of Matthew Whitaker to serve as acting attorney general violated the Constitution.  Despite that the President has the right to appoint an interim A.G. and that choosing the second in command, makes sense in almost every situation.

The new group also includes Tom Ridge, a former governor of Pennsylvania and secretary of homeland security in the Bush administration; Peter D. Keisler, a former acting attorney general in the Bush administration; two prominent conservative law professors, Jonathan H. Adler and Orin S. Kerr; and Lori S. Meyer, a lawyer who is married to the president of the Federalist Society.

The group declares:

“We believe in the rule of law, the power of truth, the independence of the criminal justice system, the imperative of individual rights and the necessity of civil discourse. We believe these principles apply regardless of the party or persons in power.”

In the view of Peter D. Keisler, former acting A.G. under President George W. Bush,

“The president has attacked the Justice Department for indictments of Republican congressmen on the stated ground that prosecution would hurt Republican chances in the midterm elections, and he’s urged that the Justice Department investigate his political opponents. That is a fundamentally wrong and very dangerous view of the criminal justice system, and people from both parties and across the political spectrum should condemn it.”

Lori Meyer said she was worried about the administration’s casual attitude toward the truth:

“My particular concerns are all the disinformation and spin that comes out almost every day. It makes it impossible for any real dialogue to be had.”

Tom Ridge said he was concerned about attacks on the independence of the judiciary:

“Regardless of whether you are a Republican or a Democrat, liberal or conservative, you embrace the rule of law.”

Professor Kerr says,

“The rule of law has to come first. Politics comes second.”

When President Trump complained that an “Obama judge” from the Ninth Circuit had ruled against his administration’s asylum policies, John Roberts, the Chief Justice of the U.S. Supreme Court, and a highly regarded conservative jurist issued a very unusual rebuke. He declared,

“We do not have Obama judges or Trump judges. Bush judges or Clinton judges, an independent judiciary is something we should all be thankful for.”

While the Framers of the Constitution created a system which they hoped would preserve freedom by limiting government and dividing its power between three branches, the executive, legislative and judicial, they were not sure that such a system would survive.

“Democracy never lasts ” John Adams observed. “It soon wastes, exhausts,
and murders itself. There never was a democracy that didn’t commit suicide.”

To have a president who seems not to understand how fragile our system is, and the danger he poses to it by seeking to expand the power of one branch of government at the expense of the other two is a dilemma we now face. Trump is not the first President to rely on executive orders to reach his agenda goals.   President Clinton signed 364 Executive Order, George W. Bush, 291 and Barack Obama 276.

Conservatives’ work is cut out for them

Genuine conservatives, who believe in our system, have an essential role to play in preserving the Constitution. To permit narrow political partisanship to endanger the future of our system of checks and balances is the genuine danger we now face.

Political partisanship today seems without real content. It seems to be opposition for the sake of opposition. Working in the Congress as an assistant to the research director of the House Republican Conference, interactions included two future presidents, George H.W. Bush and Gerald Ford were members of our committee. Congress did not always work smoothly but it worked. Republicans and Democrats did not view one another as “enemies.”

The current path our politicians have chosen is not working very well, and our Constitutional system is threatened as a result. I always wanted to think that my generation would be leaving America better than we found it. Now, I am not so sure.

Allan C. Brownfeld

Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.