Cancelled Checks & Balances

 

Cancelled Checks & Balances

It began during the Reagan presidency, the American push-back against restrictions imposed on our head of state to prevent another undeclared Vietnam War. Congress, looking to rein in the President’s control over the military, passed restrictions on how far a president could declare and sustain military action without consulting Congress, the only body the Constitution empowered to declare war. We still have a law from that era that requires the president to seek authorization from Congress within 60 days of beginning an armed conflict.

But there was an underlying conservative theory, taken from ancient Roman law, where when a quick response and military action was required, the Roman Senate could and did issue emergency decrees (senatus consultum ultimum) it deemed necessary to protect the state and could appoint one of their own to lead, a “unitary executive,” who could react without returning to the Senate for approval along the way. Even during Imperial times, the Roman Senate retained extraordinary powers.

When 9/11/01 occurred, the United States faced a military attack on major targets (the Twin Towers, the Pentagon, etc.) for which it was fully unprepared. President George W Bush’s Vice-President, Dick Cheney, looked at those Vietnam era restrictions as inappropriate for the rapidly changing modern era. But as the horrors of 9/11 were sliding into history, Cheney, a strong believer in the Unitary Executive system of governance, realized that the only way to repeal those restrictions on the presidency was to declare a major threat to the Republic and pass legislation as a necessity to counter those threats. Cheney and his cohorts drafted a 300+ page statute that was ultimately to be the Patriot Act… but he needed a threat big enough to get Congress to pass that tome, releasing restrictions on the President.

That draft of the “Patriot Act” sat in a drawer as Bush/Cheney finally manufactured the need to counter Iraqi dictator, Saddam Hussein’s purported build-up of possible nuclear, biological and chemical “Weapons of Mass Destruction.” Th CIA was ordered to prove the existence of these “WMDs”… even if it meant fabricating the necessary evidence. As the administration demanded a freer hand being accorded in countering Hussein’s WMDs (never found), the Patriot Act was introduced to Congress as emergency legislation on a Friday, with a vote scheduled for the following Monday. It passed, mostly based on its title, with very few members of Congress having read the bill.

Conservatives continued pressing to enhance presidential power, some even to the extent of giving the president the power to act without Congress and, perhaps, to ignore contrary rulings by the Supreme Court. It was within this push for more presidential power that Donald Trump, a CEO who expected his corporate orders to be carried out without objection, became President and, in his second term for Project 2025 to become the new Patriot Act. The notion of constitutional checks and balances (defined in the first three articles of the Constitution) had been eroding for years, and Trump and his appointees turned quickly to solidify his power.

But Trump 2.0 has been a disaster at every level. His unilateral executive orders produced an illegal and costly system of tariffs, his immigration rapidly deteriorated into a cruel and indiscriminate purge of mostly innocent, hard working undocumented workers and his de facto unilaterally declared WAR on Iran produced economic disaster, rapidly rendering Trump one of the least popular presidents in modern history. Inflation returned, prices in every corner rose fast (the shutting of the Strait of Hormuz raised fuel and other costs dramatically), and Americans and the international community watched as Trump was backed into a corner with few off-ramps.

Was this a time when those checks and balances could be restored? Democrats were winning in most off-season elections. Trump’s efforts to cull the voter rolls were failing. It sure looked as if the GOP members who controlled Congress were heading for almost certain midterm defeat. But Trump’s election plans were gathering, perhaps from the use of ICE agents at polls or, perhaps more subtle efforts as reported in the April 26th Los Angeles Times by columnist Mark Barabak:

“There is, however, a looming threat causing nervousness among Democrats and their allies as they contemplate a celebratory fall, a landmine of sorts buried deep in the congressional election process… Let’s acquaint ourselves with Article 1, Section 5 of the Constitution… The pertinent language written by the Framers states, ‘Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.’…In other words, it’s up to the House and Senate to acknowledge and abide by the will of voters as expressed in the election returns… What could possibly go wrong?

“Well, if you let your paranoia run wild, quite a lot. If the election outcome is close — and probably it would have to be very close — Republican lawmakers could theoretically seize on phony claims of fraud and effectively nullify the results of enough contests to deny Democrats control of the House… There’s plenty of skepticism that would or could ever take place. But if it were to happen, hello, national crisis!...

“This president has amply demonstrated the lengths to which he’ll go to overturn an honest election, siccing a violent mob on lawmakers certifying his 2020 defeat, telling endless lies and using the Justice Department to confiscate ballots and intimidate innocent election officials and others Trump deems his enemies… He strong-armed Texas into a highly unusual, highly partisan redrawing of its congressional boundaries, an effort to net five seats and lengthen the odds against a Democratic takeover… The move appears to have backfired, spurring voters in California and, last week, Virginia to redraw their state’s political maps to more than offset Texas and boost Democrats in November. (The Virginia results are being contested in court.)

“That failure doesn’t take away Trump’s malign intent. And in the supine Speaker Mike Johnson, he has the perfect handmaiden to undermine the midterm vote… One theory goes like this: When the balloting is over, Johnson could appoint a House committee packed with Trump’s acolytes to investigate alleged voting irregularities. (And if you think Trump won’t be bellowing the words ‘rigged’ and ‘fraud’ in the face of defeat, you’ve either been in a coma or living on another planet for the last decade.)…

“Those hearings and the ‘evidence’ they turn up could then be cited by election officials in key states — collaborators, if you will — as a reason to delay the certification of election results and block the seating of majority-making Democrats in the next Congress.” Trump seems to know no bounds to rig election results.

I’m Peter Dekom, and whether Trump pursues any of the above election attacks or finds another way to retain control, unless those checks and balances are restored and work as intended by our forefathers, welcome to the end of the noble American experiment with democracy.