Americans take pride in their nation’s history of separation of powers, not just between the famous triad of the executive, legislative, and judicial branches; but also between the national and state governments. To back up this separation of powers, the United States also boasts a robust system of checks and balances, overlapping oversights by different levels of government that prevent any one person or body from accumulating overly-concentrated power. Amidst a world of absolute monarchs and over-taxing parliaments, the American mythos writes a narrative of our Founding Fathers authoring an exceptional system of governance that prioritized the freedom of the people over the desires of a power-hungry national government. While there were of course unseemly blemishes on this mythos, namely the oppressed status of non-white persons in the United States (or territories the U.S. had its eyes on), this concept of preventing a concentration of power for the sake of freedom and democracy has remained motivating throughout our nation’s history. In fact, one of the most potent arguments for civil rights leaders in the ‘50s and ‘60s and suffragettes decades earlier was an appeal to this idealistic vision of an America which shares power rather than hoarding it. This ideal has been shared in one form or another by Americans across gender, racial, religious, political, and other divides for decades. However, there have been moments in American history where this ideal was threatened by gross power grabs, with two such moments standing out in the past century.
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The first came in 1937, in the midst of the Great Depression. President Franklin D. Roosevelt was pushing vigorously for his now-famed “New Deal” for America. Over the course of the 1930s, this New Deal would prove enormously transformative for the United States, providing the nation with numerous public works projects, financial support for agriculture, Wall Street regulations, and even Social Security. But in 1937, Pres. Roosevelt was frustrated at various setbacks in his signature programs. These setbacks came not at the hand of opposition Republicans, but rather by the Supreme Court of the United States, which struck down several individual laws in the New Deal catalog as unconstitutional. Moreover, when Roosevelt sought to remove a member of the Federal Trade Commission for being insufficiently supportive of his New Deal policies, the bureaucrat in question took his firing to court. The Supreme Court ruled that the firing was done for purely political reasons and was thus unlawful.
Controversial decisions are made by the Supreme Court every year. Indeed, every case brought before that body has attorneys representing both sides; someone will be disappointed after every verdict. It is also true that the Supreme Court is hardly infallible, and has been known for poor and even tragic decision-making such as the infamous Dred Scott decision in the mid 19th century that cemented Black slaves’ status as nothing more than property to their white owners. However, our system of government allows for remedies against an awful judiciary just as it does against the legislative and executive branches. In the case of Dred Scott, a particularly vocal opponent of this decision was a former Congressman from Illinois named Abraham Lincoln. This Lincoln would go on to head the executive branch as President and, alongside anti-slavery advocates in the Congress, push through the 13th Amendment to the U.S. Constitution, abolishing slavery. The 13th Amendment and subsequent amendments rendered the Dred Scott decision obsolete and void. Supreme Court decisions can be stinging if you find yourself on the wrong side of them, but they need not mark the end of the question. Yet when Pres. Roosevelt found himself continually at odds with the highest court in the land, his recourse was not to push for laws more amenable to the Court’s concerns or call for constitutional amendments that would permit his ambitious programs. Instead, Pres. Roosevelt proposed in 1937 the Judicial Procedures Reform Bill, a piece of legislation that would allow him to appoint a new Supreme Court Justice for every Justice over the age of 70 years and 6 months (where the six months came from I am not sure). The bill was ostensibly drafted to address a heavy workload and case backlog for the Supreme Court (a backlog which Chief Justice Charles Evans Hughes denied even existed) and provide some youthful new blood to that hoary bench. To the public and most members of Congress, however, the plan was derided as a brazen attempt at court-packing to further Roosevelt’s political aims. In short, particular checks and balances frustrated Roosevelt’s (and Congress’s) power to pass massive reforms. Roosevelt then sought to remove those checks and balances that were getting in the way.
The response was unkind to the President. The Senate Judiciary Committee, led by a fellow Democrat, effectively killed the bill by sitting on it without action until Roosevelt gave up the crusade. The public, up to this point overwhelmingly on board with Roosevelt’s legislative agenda and greatly admiring of the President (they elected him to an unprecedented third term, after all), expressed displeasure at FDR’s blatant power grab. The poetic follow-up to Roosevelt’s failure to pack the court was that the President would go on to make no less than 9 Supreme Court appointments throughout the rest of his presidential tenure (one of which was simply naming the already-serving Associate Justice Harlan Stone as the new Chief Justice to replace the afore-mentioned Hughes). President Roosevelt sought to erode checks and balances to shape a court that he would later make 9 appointments to anyway. In this moment of American history, the institutional integrity of the Supreme Court and its check on the other branches in the form of judicial review were able to withstand tremendous duress. An American institution outlasted the whims of a president.
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Yet some three and a half decades later America would come to a second moment of crisis. I am sure that the infamous Watergate scandal need not be rehashed for all its intricacies here. Suffice it to say that Pres. Richard Nixon’s attempts to cover up a conspiracy to burgle campaign information from Democratic opponents in the run-up to the 1972 election was already an egregious abuse of power. But what followed would only compound the threat to the rule of law in the United States. After the U.S. Senate launched an investigation into the Watergate scandal, and the Justice Department appointed a special prosecutor to look into the same, testimony by a Nixon administration official revealed the existence of an audio recording system installed in the Oval Office. This bombshell quickly became the crux of the entire investigation, and the special prosecutor, Archibald Cox, subpoenaed the White House for these tapes. Numerous officials close to Nixon were already implicated in the Watergate break-in. The tapes held the potential to display a connection to President Nixon himself.
Nixon’s response was that the tapes were protected by executive privilege, as they contained information sensitive to his role as President. Escalating his defiance further, Nixon ordered the special prosecutor to rescind his subpoena. When Cox refused, Nixon incredibly ordered his Attorney General, Elliot Richardson, to fire the prosecutor. Richardson, despite being a Nixon appointee, had appointed Cox as special prosecutor, and resigned his office rather than fire Cox in a stunning break with Nixon. The President then turned to the Deputy Attorney General, William Ruckelshaus, to fire Cox. Ruckelshaus, too, resigned rather than carry out the order. Eventually, Nixon found someone in the Justice Department to fire Cox (Solicitor General Robert Bork), but the event damaged Nixon’s public image considerably. What was most incredible about this dramatic chain of heavy-handed orders and defiant resignations was that it all occurred in one Saturday evening on October 20, 1973, thus later earning the name of the “Saturday Night Massacre.”
Only ten days after that dark weekend, the House of Representatives began impeachment proceedings against President Nixon. The articles of impeachment considered were three in number: obstruction of justice, abuse of power, and contempt of Congress. The drip-drip of new information harming the President would culminate in the Supreme Court’s unanimous (!) decision in July 1974 that the Oval Office tapes were not protected from investigative review by claims of executive privilege. They ordered the tapes to be turned over to the new special prosecutor, Leon Jaworski, to which Nixon complied. The tapes revealed Nixon to be intimately involved in the cover up of the Watergate break-in, with the American public now able to hear the voice of their President as he was aiding and even directing a criminal activity. This evidence was enough to push Nixon’s fortunes over the brink of the impeachment abyss, with the House Judiciary Committee approving the three aforementioned articles on July 30. With pressure mounting from Democratic and Republican Congressmen alike, as well as even some members of his own Cabinet, Nixon announced his resignation on August 8, 1974. In the wake of abuses of power compounding on other abuses of power by the nation’s Chief Executive, the country’s checks and balances served its people well. Both the judicial and legislative branches stepped in to check a President who was reaching far beyond the intended bounds of his office. And in the ensuing conflict, the perpetrating executive branch lost.
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And now, here we stand with this historical precedent of separation of powers and checks against authoritarianism. That is not to say that American history is not also full of incidents where the checks failed or where power was amassed unnecessarily or rights were stomped underfoot. Just as any other nation, the United States is guilty of terrible abuses. However, in respect to this particular issue of democratic safeguards, the United States has shown a relatively consistent hostility towards instances of authoritarianism on the part of presidents or other politicians. Even for someone as idolized as FDR, the political gravity of American ideals could not be defied when he explicitly attempted stacking the Supreme Court.
But that could be changing. There is a worrying trend developing in both Republican and Democratic circles, at times overt and at times beneath the surface. Allow me to summarize a common sentiment today: This country is in need of major reforms and changes. My party and I are pushing for these changes, but the opposition keeps blocking us. Because of them, nothing good is getting done in this country.
The problem is a relatable one, I think, for many people tuned in to politics. It is certainly relatable for politicians on Capitol Hill. Unfortunately, the proposed solution is now too often an undermining of checks and balances. See now if you can spot similarities between present day proposals and the FDR and Nixon examples I have already covered.
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On one side of the aisle, President Trump has expressed frustration at Congressional attempts to inquire into possible conflicts of interest between the President’s business interests and his treatment of foreign delegations and leaders. Inspectors General within the Trump administration have found themselves on the bad side of the Commander-in-Chief, conveniently when they are looking into wrongdoing on the part of Cabinet members and other high-ranking officials close to Trump. Undoubtedly, the pinnacle of Pres. Trump’s war against government oversight was the impeachment inquiry and trial of late 2019 and early 2020. Abnormal visits to Ukraine by Trump’s personal attorney Rudy Giuliani and Trump’s own oddly pointed comments to the Ukrainian President in regards to opening up investigations into the not yet Democratic nominee Joe Biden caused concern amongst members of Congress on both Republican and Democratic sides. Further testimony from White House officials indicating that foreign military aid may have been conditioned on Ukraine’s compliance in announcing an investigation on Biden only deepened these concerns and instigated a call for more witnesses closer to the events in question. However, the White House officials who testified before Congress did so in direct contravention of President Trump’s order that not a single White House employee should provide testimony before the House or Senate on the matter. It was not simply a prohibition on high-ranking officials for particular, role-specific reasons. Rather, all employees of the Trump administration were mandated not to testify regardless of their status or role in the White House. Frequently, claims of executive privilege were produced by the White House, however these claims apparently applied to any and all employees of the White House rather than particular Oval Office tapes. In this instance, contrary to the Nixon precedent, Pres. Trump was impeached by the House but later acquitted by the Senate (however, the Senate vote made history in that Sen. Mitt Romney became the first Senator ever to vote to convict a President of his own party). To this day, the full facts of what precisely transpired between President Trump and Ukraine are unclear, largely due to the successful stonewalling of the executive branch.
A short trot to the other side of the aisle will expose a different danger. Democrats remain bitter over what they decry as obstructionism on the part of Senate Republicans while Pres. Obama was in office and Democrats controlled the upper chamber. Nevermind the similar tactics employed by Senate Democrats once they found themselves in the minority after 2014 and facing a Republican President after 2016. On all policy questions, the Democrats are in the right, after all, so such tactics are clearly necessary to effect “progress.” (To those for whom it was unclear, that sentence is intended sarcastically.) The prospective future they fear is one in which Senate Republicans once again prevent major policy goals of a President Biden, should he be elected. To the credit of Joe Biden himself, he has suggested that he intends to work with Republicans to pass bipartisan legislation if he is elected to the Presidency. However, an alternative tactic has found itself rising rapidly in the opinion of notable Senate Democrats such as former presidential contender Sen. Elizabeth Warren. That proposed reform is to abolish the Senate filibuster, a procedural tool to be used by a minority of Senators on any policy issue to effectively kill a bill on the Senate floor. So long as the floor is held for debate by a Senator, then a vote may not be taken on the legislation in question unless if a supermajority (currently 60) of Senators votes to invoke cloture, that is to immediately end debate and proceed to a final vote. If sixty votes cannot be garnered, then the filibuster is successful, and the bill will remain “only a bill,” in the words of that timeless Schoolhouse Rock civics lesson. Abolishing the filibuster would mean that a simple majority vote would be sufficient to end debate and proceed to a final vote. In other words, whichever party holds a majority in the Senate would have no need nor incentive whatsoever to consult with the minority party to pass legislation. Legislation need no longer have bipartisan support. Of course, it is obvious that such a reform would allow much more legislation to be passed into law.
By this metric, perhaps abolishing the filibuster would be a clear success; change would be just 51 votes away. However, there is a painful shortsightedness to this view that illustrates the necessity of a filibuster in the first place. What is progress? A movement in the direction of positive change. Which change is positive? Well, welcome to the debate. Almost every political issue that comes before Congress is responded to by a wide variety of backgrounds, experiences, and opinions. To support abolishing the filibuster is to suggest that this is a problem. If the issue is an inability to pass meaningful legislation, then there are reforms that could be made to the filibuster to render it less obstructive. These could be requiring a supermajority of Senators present in the chamber to break a filibuster rather than simply a supermajority of the Senate as a whole. It could also include a gradually lowering threshold to invoke cloture for every successful filibuster that would encourage the minority and majority to work towards a compromise rather than simply delay legislation that will inevitably pass anyway. But an outright abolition of the filibuster will render the minority party in the Senate powerless, whichever that party may be at the time. Democrats may see a filibuster-less future in which they win a Senate majority and pass all the many progressive policy bills they desire. But they neglect to consider themselves in a filibuster-less future as a powerless minority subject to the floodgates of major Republican legislation. We have already seen this occur following the filibuster being removed for Cabinet and judicial confirmation votes. Some of Pres. Trump’s nominees have proven highly controversial, sometimes even amongst some Republicans. Yet the lack of a filibuster for such nominations allowed for the simple majority confirmations of individuals like Justice Brett Kavanaugh or Secretary of Education Betsy DeVos rather than nominees with more broad appeal (or at least full Republican backing). Indeed, Pres. Trump has tweeted his support for abolishing the filibuster entirely, as well, in one of the more curious cases of agreement between him and Sen. Warren. Their motivations for this shared opinion is the same, if simultaneously at odds with one another. They both desire to pass major partisan legislation without concern for compromise with the opposition, just as Pres. Roosevelt sought to pass legislation without the burden of their approval from a Supreme Court that disagreed with his constitutional views.
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The difference between the times of Roosevelt/Nixon and now, is that in the case of these two famous Presidents, their aspirations for power met a stone wall held up simultaneously by checks and balances and public opinion. The system that was established by the Founding Fathers to safeguard the republic from a concentration of power ultimately worked in these cases, even as they brushed with disaster. And these systems were backed up by broad support amongst the American electorate. Both Roosevelt and Nixon had come from landslide reelections when they sought to break down governmental guard rails, yet the American people set aside their prior electoral support when the President threatened governmental integrity. Today, on the other hand, a large swath of Republican Congresspeople and voters have shown little desire to hold the Trump administration to account for numerous allegations of wrongdoing by Cabinet members (and possibly the President himself in the Ukraine incident). Likewise, while the Democratic Party has not bought into abolishing the filibuster wholesale, the party faithful are inching their way to that point. Even former President Barack Obama recently voiced his support for the proposal in his speech at Rep. John Lewis’ funeral, where he erroneously called the filibuster a “relic” of the Jim Crow era. In reality, while the filibuster certainly does not date to the Founding or to the Constitution, its first use can be found in 1837, well before the Civil War, let alone Jim Crow. Ironically, the adoption of cloture does date to the Jim Crow era, however, with the Senate first instituting the ability to end a filibuster by a supermajority vote in 1917 after Pres. Woodrow Wilson grew frustrated at the Republican minority for blocking certain war measures during World War I.
There is some legitimacy to concerns that Congress can go too far in weaponizing its power of oversight over the President for political purposes or that the Senate minority can hold up legislation in bad faith without any intention of trying to reach a compromise with the majority. But Americans these days have a terrible habit of overcorrecting and falling off the other side of the horse. An overreaching Congress does not necessitate a prohibition on any and all testimony by White House staff; an obstructive Senate minority does not necessitate eliminating their right to be heard altogether. We live in a moment quite similar to FDR’s court-packing scheme or the Watergate scandal, perhaps more than we would like to believe. The question is if we will learn from that history and avoid a deterioration of our democratic safeguards. An oft-repeated anecdote from the drafting of the Constitution seems relevant here. It has been said that after the Constitutional Convention adopted our nation’s foundational legal document in 1788, Benjamin Franklin encountered a woman on the street who asked him what system of government the delegates had decided upon. “A republic, if you can keep it,” he replied.
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