It wasn’t our constitutional system of checks and balances.
Tim Wu, New York Times
Mr. Wu is a law professor at Columbia University.
Dec. 10, 2020
Americans are taught that the main function of the U.S. Constitution is the control of executive power: curtailing presidents who might seek to become tyrants. Other republics have lapsed into dictatorships (the Roman Republic, the Weimar Republic, the Republic of China and so on), but our elaborate constitutional system of checks and balances, engineered largely by James Madison, protects us from despotism.
Or so we think. The presidency of Donald Trump, aggressive in its autocratic impulses but mostly thwarted from realizing them, should prompt a re-examination of that idea. For our system of checks and balances, in which the three branches of government are empowered to control or influence the actions of the others, played a disappointingly small role in stopping Mr. Trump from assuming the unlimited powers he seemed to want.
What really saved the Republic from Mr. Trump was a different set of limits on the executive: an informal and unofficial set of institutional norms upheld by federal prosecutors, military officers and state elections officials. You might call these values our “unwritten constitution.” Whatever you call them, they were the decisive factor.
It’s true that the courts at times provided a check on Mr. Trump’s tyrannical tendencies, as with their dismissal of his frivolous attacks on the election and their striking down of his effort to overturn the Deferred Action for Childhood Arrivals program without appropriate process. But in other cases, such as his anti-Muslim travel ban, the courts have been too unwilling to look beyond form to ferret out unconstitutional motive. More generally, Mr. Trump has tended to move fast, while the courts are slow, and to operate by threat, which the courts cannot adjudicate.
The bigger and more important failure was Congress. Madison intended Congress to be the primary check on the president. Unfortunately, that design has a key flaw (as Madison himself realized). The flaw is vulnerability to party politics. It turns out that if a majority of members of at least one body of Congress exhibits a higher loyalty to its party than to Congress, Congress will not function as a reliable check on a president of that same party. This was what happened with Mr. Trump and the Republican-controlled Senate.
The problem is chronic, but over the last four years it became virulent. Confronted with a president who was heedless of rules, Senate Republicans, in ways large and small, let him do what he wanted. They allowed acting appointees to run the federal government. They allowed him to claim a right to attack Iran without congressional approval. The impeachment process was reduced to nothing but a party-line vote. The Senate became a rubber stamp for executive overreach.
Instead, the president’s worst impulses were neutralized by three pillars of the unwritten constitution. The first is the customary separation between the president and federal criminal prosecution (even though the Department of Justice is part of the executive branch). The second is the traditional political neutrality of the military (even though the president is the commander in chief of the armed forces). The third is the personal integrity of state elections officials.
If any of these informal “firewalls” had failed, President Trump might be on his way to a second and more autocratic term. But they held firm, for which the Republic should be grateful.
Consider the first firewall: prosecutorial independence. The prosecution function of the executive branch is not mentioned in the Constitution, and based on the text alone — “the executive Power shall be vested in a President of the United States” — some might think (and some have even insisted) that the president has the power to order federal prosecutors to do his bidding. Mr. Trump claimed that power in 2017, saying “I have absolute right to do what I want to do with the Justice Department.”
But an unwritten norm has long held that the president should not dictate law enforcement decisions in general, and criminal prosecutions in particular. That is why, throughout this fall, even as Mr. Trump urged his appointees in the Justice Department to openly announce a criminal investigation into the Biden family, they did not comply. None of Mr. Trump’s appointees was willing to openly investigate Joe Biden or his family members, let alone issue an indictment or civil complaint.
Imagine if the Justice Department had followed Mr. Trump’s lead. Imagine if in response to the provocations of Mr. Trump’s lawyer Rudolph Giuliani, a U.S. attorney had charged Mr. Biden with criminal fraud. Even if Mr. Biden ultimately prevailed in court, publicly fighting such charges during an election would be a political and logistical nightmare. The unwritten constitution blocked this line of attack on the electoral process.
Prosecutorial independence was not limited to refusing to indict Mr. Trump’s political adversaries; it also extended to indicting his allies. Over the past four years, seven of Mr. Trump’s close associates were indicted and six have been convicted, including his adviser Stephen Bannon, his campaign chairman Paul Manafort and his lawyer Michael Cohen. Such convictions would be unimaginable in a dictatorship.
None of this is to suggest that William Barr, Mr. Trump’s attorney general, has served as a model of nonpartisan behavior, or that the Justice Department has been scrupulously fair. What it does show is how powerful unwritten norms can be, even in a department run by a loyalist.
The second firewall of the unwritten constitution was the U.S. military’s longstanding custom against getting involved in domestic politics. It was invaluable in checking Mr. Trump’s militaristic instincts.
On June 1, as protests and counter-protests occasioned by the killing of George Floyd became violent and destructive of property, Mr. Trump appeared in the Rose Garden of the White House and denounced what he called “acts of domestic terror.” He said he would “deploy the United States military” if necessary to “defend the life and property” of U.S. citizens. In a subsequent photo op, he was flanked by Mr. Barr, Defense Secretary Mark Esper and Gen. Mark Milley, the chairman of the Joint Chiefs of Staff, who was clad in military fatigues. Soon, active duty forces from the 82nd Airborne Division were positioned outside of Washington.
Mr. Trump’s plan had the written law on its side. Neither the Constitution nor any congressional statute would have prevented the president from directly ordering active duty military to suppress the protests. The Constitution makes the president the commander in chief of the armed forces and the Insurrection Act of 1807 allows the president to use the military or National Guard to suppress civil disorder, providing a broad exception to the general rule barring domestic use of the military.
It was an extraordinarily dangerous moment for the country. As the history of lapsed republics suggests, when the military becomes involved in domestic politics, it tends to stay involved. But two days after Mr. Trump’s speech, Mr. Esper publicly broke with the president, stressing that active duty forces should be used domestically only “as a matter of last resort, and only in the most urgent and dire of situations.” He concluded that “I do not support invoking the Insurrection Act.”
General Milley later issued a public apology for participating in Mr. Trump’s photo op. “My presence in that moment,” he said, “created a perception of the military involved in domestic politics.” He added, “I should not have been there.”
Mr. Trump’s plans ran afoul not of the law, but of an unwritten rule. In a few days, the active duty troops gathered around Washington were sent home. Though briefly tested, the norm had held.
The final firewall of the unwritten constitution has been the integrity of state elections officials. Corruption of the people and institutions that set election rules and count votes is an obvious threat to the democratic process. In Russia, for example, the neutrality of its Central Election Commission during President Vladimir Putin’s rule has been repeatedly questioned, especially given the tendency of that body to disqualify leading opposition figures and parties.
The story of Brad Raffensperger, the secretary of state in Georgia and its top elections official, testifies to the potential threats to an election’s integrity during a heated campaign. Mr. Raffensperger, a Republican, was loosely in charge of the vote in a state that went narrowly for Mr. Biden. In that capacity, Mr. Raffensperger was attacked and disparaged by higher-ranking members of his own party. This included such prominent political figures as Georgia’s two senators, David Perdue and Kelly Loeffler. Both demanded Mr. Raffensperger resign for no apparent reason other than his failure to prevent Mr. Biden from winning the state.
Despite the pressure, Mr. Raffensperger and the state’s governor, Brian Kemp, held steady, along with an overwhelming majority of state elections officials around the country. They have refused to “discover” voting fraud without good evidence of it. Party loyalty — at this point — seems not to have fatally corrupted the vote-counting process.
Might this welcome result be credited to constitutional design? Not really. The states are an important part of the Constitutional design, and the document does give them a central role to play in federal elections. But what seems to have mattered most, in terms of ensuring the integrity of the voting process, was less the constitutional structure and more the personal integrity of the state elections officials. Their professional commitment to a fair vote may have spared the Republic an existential crisis.
Madison famously wrote, “If men were angels, no government would be necessary.” Cynical minds have read this line to mean that we should never trust people and should rely only on structural controls on government power.
The last four years suggest something different: Structural checks can be overrated. The survival of our Republic depends as much, if not more, on the virtue of those in government, particularly the upholding of norms by civil servants, prosecutors and military officials. We have grown too jaded about things like professionalism and institutions, and the idea of men and women who take their duties seriously. But as every major moral tradition teaches, no external constraint can fully substitute for the personal compulsion to do what is right.
It may sound naïve in our untrusting age to hope that people will care about ethics and professional duties. But Madison, too, saw the need for this trust. “There is a degree of depravity in mankind,” he wrote, but also “qualities in human nature which justify a certain portion of esteem and confidence.” A working republican government, he argued, “presupposes the existence of these qualities in a higher degree than any other form.”
It is called civic virtue, and at the end of the day, there is no real alternative.
Tim Wu (@superwuster) is a law professor at Columbia, a contributing opinion writer and the author, most recently, of “The Curse of Bigness: Antitrust in the New Gilded Age.”
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