Crooks and Balances

I wrote this just after the firing of Sally Yates from her post as Deputy Attorney General. Since then, things have continued to devolve to a point where satire is dead and watching the news is the possible cause of a heart attack. I wanted to post this because to me it continues to be a reminder that though our nation is young, we do have a complex system of historical and governmental precedent for guiding especially our legal actions. From historical trial and error, the possible and very actual political fuck-ups, we can at the very least see where we are continuing past mistakes and where we are making brand new errors.

In United States v Nixon, the Supreme Court case that forced President Richard Nixon to release his secretly recorded tapes to the prosecution in accordance with a subpoena. Chief Justice Burger wrote the opinion for the ruling. Here were some of the quotes I found most interesting:

In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President’s counsel as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison . . . that “it is emphatically the province and duty of the judicial department to say what the law is”.[p704] *

*We could get into a whole discussion here over judicial review, but in the interest of time and my own sanity, I’m just going follow legal precedent in its application within our governmental system.

However, neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide. [p707]

Whilst reading through this dense but extremely well-written and interesting historic document, I am immediately struck by two thoughts:

  1. I am so happy I didn’t go to law school, so I will never have to deal with legalese.
  2. I am scared shitless about the direction of this administration and the dissolution of our system of checks and balances.

So remember that phrase, “Checks and Balances” that we learned in school, maybe from a shoddy textbook, eccentric teacher or schoolhouse rock? That system of government was rather revolutionary when the revolutionist founding fathers wrote it into a thing called the Constitution. The idea was that by separating the governing powers into Executive, Legislative, and Judiciary branches, each division could focus on their particular area of expertise while providing “checks and balances” to the power of the other branches. This was the attempt of the constitutional congress to create a system in which no single section of government could abuse their power nor circumvent the other branches to seize total control of the country. They were trying to avoid a full circle devolution into authoritarianism, as under the British monarchy (at least in the eyes of the American revolutionaries).

The founding fathers challenged the notion of divine right, the assertion that the King gets his right to rule directly from God, which was pretty amazing for the time. Sure, the government was still formed by a bunch of wealthy, land-owning white men who ensured that their class would continue to prosper while perpetuating the systems that disenfranchised people of color and women, but we’re still working on that. The three branches of our government have had immense problems throughout history (with each other and the public), but they have survived, and have in many ways prevented any one person or group from gaining total power over the United States.

In the US v Nixon case, Justice Burger asserted that, though the President cannot be tried as an ordinary citizen, he is also not above the rule of law (I was going to write “he or she” there, but let’s be real). He further enforced the Judicial Branch’s role in interpreting Constitutional Law and “checking” the powers of the Executive Branch. If I may paraphrase, he replied to all the President’s counsel and Nixon himself,

“No, you cannot just do whatever the fuck you want” (not an actual quote, but basically).

The scary thing for me is that now we have a President who truly believes that he is accountable to no one, that he can do WHATEVER the fuck he wants. We’ve now seen the first challenge from the Attorney General, questioning whether an executive order is lawful. Rather than listen to an expert in American Law or be at all concerned with the fact that he might be cockslapping the Constitution (or at least not upholding the rights it protects), he fired her. Like he still thinks he’s on his reality TV show. I’m not saying the President can’t fire people, but this is a terrifying preview for dealings with dissenters or opposition within Washington. Also, what does this mean for the future relationship between the Judicial and Executive branches?

What happens if Trump appoints people who will not fulfil the role of checks and balances within the governmental branches?

I don’t have answers, so I’m seriously asking.

Here’s the document that got this rant going:

https://www.law.cornell.edu/supremecourt/text/418/683

And here is a link to the Crash Course explanation of the separation of power and checks and balances in the U.S. Government. I love Crash Course.

https://www.youtube.com/watch?v=0bf3CwYCxXw 

I’d like to finish with a quote by James Madison in his defense of the U.S. Constitution. Man, they could write the shit out of an essay back then.

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
James Madison, Federalist Papers Nos. 10 and 51

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