8 hours ago

America’s famed ‘checks-and-balances’ governance system is failing | Jan-Werner Müller

It has been said many times, but saying it appears to have no consequences: our system of checks and balances is failing. The US supreme court allowing the president effectively to abolish the Department of Education only reinforces this sense; Sonia Sotomayor, in her dissent, explicitly wrote that “the threat to our Constitution’s separation of powers is grave” – but she did not explain how to counter the threat.

The picture is complicated by the fact that what critics call “the stranglehold the checks and balances narrative on the American political imagination” has prevented positive democratic change. Hence it is crucial to understand where the separation of powers itself needs to be kept in check and where it can play a democracy-reinforcing role. Most important, we need counterstrategies against the Trumpists’ usurpation of what should remain separate powers.

While pious talk of the founders’ genius in establishing “checks and balances” is part of US civil religion and constitutional folklore, the system in fact never functioned quite as intended. The framers had assumed that individuals would jealously guard the rights of the branches they occupied. Instead, the very thing that the founders dreaded as dangerous “factions” – what we call political parties – emerged already by the end of the 18th century; and thereby also arose the possibility of unified party government.

The other unexpected development was the increasing power of the presidency; the founders had always seen the legislature as the potential source of tyranny; instead, the second half of the 20th century saw the consolidation of an “imperial presidency”, whose powers have steadily increased as a result of various real (and often imagined) emergencies. Some jurists even blessed this development, going back to Hamilton’s call for an energetic executive, and trusting that public opinion, rather than Congress or the courts, would prove an effective check on an otherwise “unbound executive”.

The dangers posed by unified party control and a strong presidency were long mitigated by the relative heterogeneity of parties in the US; internal dissent meant that Congress would often thwart an executive’s agenda. Less obviously, Congress’s creation of largely independent agencies, acting on the basis of expertise, as well as inspectors general within the executive itself established an internal system of checks. It also remains true, though, that, compared with democracies such as Germany and the UK, an opposition party in the US does not have many rights (such as chairing committees) or ways of holding a chief executive accountable (just imagine if Trump had to face a weekly prime minister’s question time, rather than sycophantic Fox hosts).

Most important, though, the executive itself tended to respect the powers of other branches. But Trump: not so much. In line with his governance model, of doing something plainly illegal and then seeing what happens, Trump is usurping powers reserved for the legislature. He uses money as he sees fit, not as Congress intended; he, not Congress, decides which departments are necessary. The tariff madness could be over if Congress called the bluff on a supposed “emergency” which justifies Trump’s capricious conduct of slapping countries with apparently random levies. The most egregious example is his recent threat vis-à-vis Brazil which has nothing to with trade deficits, but is meant to help his ideological ally, former president Jair Bolsonaro, escape a criminal trial for a coup attempt.

Trump is also destroying the internal checks within the executive. Inspectors general have been fired; independent agencies are made subservient to the president – in line with the theory of a “unified executive” long promoted by conservative jurists. The US supreme court, occupied to 67% by Maga has been blessing every power grab. As the legal scholar Steve Vladeck noted, the court has granted Trump relief in every single emergency application since early April, with seven decisions – like this week’s on the Department of Education – coming with no explanation at all. If this were happening in other countries, one would plainly speak of a captured court, that is to say: one subordinated to the governing party. As commentators have pointed out, it is inconceivable that this court would simply rubber-stamp a decision by a President Mamdani to fire almost everyone at the Department of Homeland Security.

Still, the main culprit is the Republican party in Congress. There is simply no credible version of “conservatism” that justifies Trump’s total concentration of power; and anyone with an ounce of understanding of the constitution would recognize the daily violations. This case can be made without buying into the separation of powers narrative criticized by the left (though what they aim at is less the existence of checks as such, but the empowerment of rural minorities in the Senate and the proliferation of veto points in the political system, such that powerful private interests can stop popular legislation).

Paradoxically, Democrats should probably make Congress even more dysfunctional than it already is: use every procedural means to grind business to a halt and explain to the public that – completely contrary to the founders’ anxieties – the emasculation of the legislature is causing democracy’s demise (it never hurts to slip in such gendered language to provoke the Republican masculinists).

Of course, one might question what role public opinion can really play as a check, and whether there’s still such a thing at all given our fragmented media world: it never constrained the George W Bush administration’s “global war on terror” in the way that Hamilton’s self-declared disciples had hoped. But it’s still the best bet. After all, there is a reason why some jurists see “we the people” as the fourth branch that ultimately makes the difference.