The Constitution’s carefully designed structure of checks and balances, electoral responsibility, and legal accountability has failed in significant and ominous ways during the Donald Trump presidency, but not all of these failures are unique to Trump. Many build on trends that have been apparent for years and practices engaged in by prior administrations. But they have presented themselves in, particularly extreme or virulent forms during the past four years.
Exactly 233 years after the Constitution was signed, on Sept. 17, 1787, it is worth looking at why this has happened and what we can do about it.
Some of these constitutional failures stem from provisions in the document itself, such as the concentration of military and administrative authority in the person of the president. In such cases, the expansion of presidential power might be expected under the so-called “unitary executive” theory.
But these otherwise innocuous design features present unique dangers when the political system has resulted in the selection of an authoritarian-minded president, or when other constitutional actors fail to produce the counteracting checks intended to hold presidential power in place and assure its responsible use.
Law must require tax return disclosure
The result is that some constitutional provisions have been violated and others have been inexplicably ignored or treated as inconsequential. Still, others have fallen into disuse, altering the Constitution’s balance and in effect tilting power toward a single person. Powers have become rearranged, scrambling the framers’ design and thwarting the checks that each branch properly has on the others.
A few examples prove the point. The core principle underlying constitutional checks and balances is that Congress legislates and the president executes, but recent presidents have abused emergency declarations and executive orders to grasp legislative powers. New laws should bar emergency declarations from lasting more than a fixed number of days without congressional approval, and authorize either house of Congress to challenge any such declarations or executive orders in court. Further, no president should have the power to reprogram funds where Congress has already considered the issue and rejected the funding, such as Trump did by using Defense Department authorizations to partially build his border wall.
No president should be able to evade the Senate confirmation process for political appointees by naming perpetual “acting” appointees as Trump has done, and judicial enforcement processes should give teeth to the Constitution’s emoluments clauses, congressional oversight powers, and the Hatch Act. The law should require presidents to disclose their tax returns. Except to repel a military attack, the power to engage in a war should return to Congress as the founders intended.
In 1944, Friedrich von Hayek wrote an influential book, “The Road to Serfdom,” mapping the tendencies of national socialism to erode democracy and individual freedom. Unchecked and imbalanced government represents another road to serfdom: the tendencies toward the tyrannical concentration of power in a single leader.
Restore our checks and balances
The road back to the rule of law consists of restoring the original understanding of the Constitution. Benjamin Franklin, answering an inquiry about the nature of the government fashioned by the Constitutional Convention, famously answered: “A republic, if you can keep it.”
The experience of present times should inspire Americans to seek to restore the framers’ original design for a constitutional republic — a system of limited government, meaningful checks and balances, and accountable officeholders.
Where governmental structures and practices depart from the Constitution’s plain meaning or clear logic, they are, to put it simply, unconstitutional. And when the executive branch exceeds its constitutional authority, Congress shirks its constitutional duty, or the courts fail to enforce constitutional commands, these institutions place our republican democracy at risk. Worse still, they threaten the liberty — our liberty — that is founded more on the Constitution’s carefully wrought institutional structure and limits on the power of the federal branches than on its enumerated rights.
The way back is to restore our constitutional checks and balances as they were understood from our nation’s founding. Regardless of who wins in November, shoring up these norms serves as the surest safeguard of republican constitutionalism and the rule of law.