Checks and Balances are not What they are Cracked up to be

Alliance to party trumps alliance to branch.

A few months ago, some guy wrote: “We are taught that we have a system of separated powers (legislative, executive, and judicial) that are explicitly designed to check and balance the others. Indeed, each institution is supposed to jealously guard its powers, prerogatives, and privileges.” He went on to note “the introduction of political parties into this system…built a bridge between the branches that was not anticipated. More importantly, it changed the dynamic of interests and incentives.”

We see a clear example of this with the following:

“Everything I do during this, I’m coordinating with the White House counsel,” McConnell said. “There will be no difference between the president’s position and our position as to how to handle this to the extent that we can.”

He added later that “exactly how we go forward I’m going to coordinate with the president’s lawyers, so there won’t be any difference between us on how to do this.”

And then he said that “I’m going to take my cues from the president’s lawyers.”

Source: WaPo, “McConnell indicates he’ll let Trump’s lawyers dictate Trump’s impeachment trial.

Now, no one should be surprised by this, as clearly the Senate is controlled by Republicans and the White House is controlled by Republicans. Therefore, they are allied.

But this contradicts Federalist 51 and the textbook discussion of separated powers. Instead of jealous guarding or legislative powers and prerogatives, the Senate has every incentive not to check the president because they are in the same party, even though they are in different branches.

I am not arguing, by the way, that the Senate should automatically want to oust the president because they are in different branches. What I am arguing, however, is that if the Framers were correct about separated powers that the Senate should have the incentive to act far more independently of the executive than we see here with McConnell (or that we have seen, in general, with congressional Republicans).

As I have noted: party trumps institutional separation and the impeachment drama clearly underscores this. The Republicans in the congress clearly are fine with the Trump administration’s unwillingness to cooperate with the investigation as well as with Trump’s own abuse of power as it pertained to congressionally authorized funds for Ukraine. They are far, far less interested in protecting the prerogatives of their branch and far more interested in promoting partisan goals.

To be clear: I am not arguing that they ought to be behaving differently. Their behavior makes perfect sense, insofar as the political rewards they seek (reelection, in the main) are achieved via partisan loyalty, not institutional obeisance.

What I am arguing is that we need to understand the degree to which political parties change the mechanics of what the Framers created–a fact that is really being emphasized now that we are in an era of polarized parties. This is a very basic political science point (that is often not fully acknowledged even by many political scientists) and it is also a clear illustration of why original intent arguments hold no moral power, let alone explanatory power.

I would also note that I am not saying that separated powers are inconsequential. They are quite important because they create veto points for policy making and other governmental action. They also contain a problematic pathology: the concentration of power in the executive. Madison thought that the ambition desires of the legislature would counter this process, but he didn’t count on parties reinforcing it.

Trump’s actions in this Ukraine business fits into this mold. Note that Congress had appropriated funds for Ukrainian assistance. Trump had no authority not to spend those funds as congress intended. Nonetheless, he attempted (and failed) to use those funds for his own personal gain. That was a violation of the separation of powers. He was trying to usurp a congressional power. Likewise, his unwillingness to cooperate with congressional inquiries and his attempts to dictate the terms of the House impeachment inquiry were all attempts to undercut the legislative branch–all actions applauded by many members of the legislative branch.

And now, the Senate Majority Leader wishes to coordinate with the White House–which is a further aggrandizement of the executive.

Ambition is certainly at the heart of all of this–but the Framers did not understand that “The interest of the man must be connected with the constitutional rights of the place” would mean partisan ambitions would be more important than institutional ones. And, of course, a major part of the problem at the moment is that our electoral system does not link actual public preferences to partisan power in a proportionate fashion.

Update: I changed the title to “Checks and Balances are not what they are Cracked up to be” from “Separation of Powers is not what it is Cracked up to be” because it more accurately reflects the dynamic I am writing about.

FILED UNDER: *FEATURED, Congress, Impeachment, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. steve says:

    We have had long trend of concentrating ever more power into the hands of the Executive branch, particularly POTUS. We no longer have equal branches. Congress is responsible for a lot of this as it has placed party loyalties first for a long time. In theory one could appeal to SCOTUS, but it is just as highly politicized. Does anyone doubt that the existing SCOTUS would support the preferred GOP outcome on anything of consequence?

    Steve

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  2. gVOR08 says:

    I used to think parliamentary systems were better. No separation of powers, so no gridlock, and the threat of a no confidence vote and election to keep the executive in line. The Brits have pretty much cured me of this delusion.

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  3. @gVOR08: I still would prefer a parliamentary system–but I would not use FPTP to elect parliament.

    And the UK’s main malady, I would note, was mixing a referendum into the mix, not parliamentarism.

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  4. Anybody of No Importance says:

    THIS is what you choose to post about. Not anything that actually happened in the hearings. Not the actual details of the IG report. THIS.

    And where was this concern over the separation of powers when it came to DACA?

    If Trump wins again in 2020, this sort of thumb-sucking, naval-gazing,arrogant yet cowardly hypocrisy is going to be a big reason why. Do you ever take five seconds to take even the most obvious objections and counterarguments into account before posting? The failure to do so probably explains the steep decline in the quality of discourse around here.

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  5. @Anybody of No Importance: Yes, weirdly I wrote on a topic that has been of interest to me for years, and that I have repeatedly written about when an event (or, in this case, a behavior by the Senate) fits into said topic.

    Not to be rude (but since it didn’t stop you), but you know how blogging works, right?

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  6. And, TBH, I have no idea why an observation about the way in which party dynamics influences inter-branch behavior can be described as “cowardly”–it is a rather laughable response.

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  7. Michael Reynolds says:

    And, of course, a major part of the problem at the moment is that our electoral system does not link actual public preferences to partisan power in a proportionate fashion.

    As you say, the founders failed to anticipate the effects of partisanship. They also failed to anticipate the Wyoming vs. California effect on the Senate and on the electoral college. They failed to anticipate the degree to which issues would become small ‘d’ democratized and inevitably dumbed down and radicalized. They failed to anticipate that the US would become a dominant global power benefitting from that global system. They failed to anticipate the US military role in modern history and the development of ICBM’s which pushed power to the executive. They failed to anticipate automatic rifles in private hands.

    They made a lot of mistakes – chiefly the failure to deal with Native Americans, African-Americans or women. But also the Second Amendment. These oversights have cost us how many dead Indians, how many dead or enslaved blacks, how many dead on both sides in the Civil War? And how many dead at the hands of gun nuts? Millions.

    If we had a simple one person, one vote system Trump would never have been elected. If we had a proportional Senate Trump would now be facing an actual trial instead of McConnell’s travesty. Maybe it’s time to take a more realistic view of the founders we tend to treat as oracles of eternal wisdom.

    The system they created has ceased to function in a way that represents the will of the American people. They created a system that benefitted people like themselves: wealthy white males and that’s who it has benefited for a century and a half. The Senate has gone from 100% white to 90% white, in 150 years. In that same time we’ve gone from 100% male to ‘just’ 75% male. IOW from one perspective the constitution has done what it was built to do: preserve the dominance of wealthy white men.

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  8. Jax says:

    @Anybody of No Importance: If you don’t like it, don’t read it. You want to read about something else, go somewhere else. This is their house, they’ll post what they want, and you have the freedom to choose whether you are interested in reading it.

    The IG report has already been done, the hearings have already been done, go read them if that’s what interests you. I suspect you’ll disagree with what was written there, too.

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  9. gVOR08 says:

    @Steven L. Taylor: This from Balloon Juice may be relevant, https://www.balloon-juice.com/2019/12/11/artificial-intelligence-you-automated-fake-news-and-trolling/ . It includes a link to a simple version of the code in question that you can experiment with. If I put in something personal it seems to produce gibberish. If I seed it with something in the news it produces stuff that sort of sounds like it makes sense.

  10. Gustopher says:

    To be clear: I am not arguing that they ought to be behaving differently. Their behavior makes perfect sense, insofar as the political rewards they seek (reelection, in the main) are achieved via partisan loyalty, not institutional obeisance.

    If every two years, each congress-critter had to offer up a finger, I think we would really change the dynamics and motivations of congress.

    It would also really change the swearing in process.

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  11. Gustopher says:

    @Michael Reynolds:

    If we had a simple one person, one vote system Trump would never have been elected. If we had a proportional Senate Trump would now be facing an actual trial instead of McConnell’s travesty.

    Just because I am feeling contrary today… the current structure requires the successful parts of the country to support policies that drag the unsuccessful parts of the country forward, or face a strong curb on their ability to grow. If it had turned out that coastal socialism was terrible, and those were the failing states where anyone who can get out does, then we would be complaining about Connecticut having such an outsized role in government rather than Wyoming.

    That’s a feedback loop that could, conceivably work, and as a good liberal, I want to drag the backwards folks of Spare Dakota into the current century and make sure they have opportunities. As Howard Dean said, even folks with a confederate flag on the back of their pickup truck deserve health care.

    I don’t think the feedback loop is working, because so much power is left to the failed states that want to protect their (failed) way of life, and it has become a suicide pact, but… if the Federal Government were able to take the failed states into receivership (measure by, say, the states that get the most federal income relative to federal taxes), it could work.

    Of course, the end result there probably really would be FEMA re-education camps…

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  12. senyordave says:

    @Anybody of No Importance: The failure to do so probably explains the steep decline in the quality of discourse around here.
    I’ve been coming to OTB for probably 7 – 8 years and I find the quality of discourse has remained consistently high. Three very astute bloggers and some extremely sharp commentators. I know that if I didn’t think so I wouldn’t comment how poor the quality of discourse was – I just wouldn’t waste my time.
    And just to be clear, I am certainly to the left of most of the people here. I also visit some blogs where I am to the right of most of the people there. I visit blogs that have topics of interest to me and intelligent comments.
    You want some blogs where you will probably be in 100% agreement with the comments? A couple suggestions – Breitbart.com, Lucianne.com, HotAir.com.

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  13. Mikey says:

    @Anybody of No Importance: You don’t agree with a Political Science professor writing a Political Science post on his own blog? Start your own fucking blog then, you whiny turd. Don’t show up here and do the rhetorical equivalent of being invited into someone’s house, then shitting on the rug.

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  14. Kurtz says:

    @Gustopher:

    Yes, we are being held hostage by people who refuse to live in the 21st century. It sucks. Yet, they are the ones who threaten civil war when they don’t get their way.

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  15. CSK says:

    @Kurtz: Peasants’ Revolt. Remember Pat Buchanan and his line about “peasants with pitchforks”?

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  16. Kurtz says:

    So which of the trolls spends their time thumbing down posts? Drew, Paul or The Ghost of Andros Present?

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  17. @Kurtz: The downvotes make me think this isn’t a code-generate troll (even if the comment is off-topic–why mention the IG report?)

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  18. Kurtz says:

    @Steven L. Taylor:

    You know the answer, Dr. Taylor.

    The IG report proves that the deepstate is real and anti-Trump. It shows how scared unelected bureaucrats were before the election.

    The IG report means that the people on this blog are either liars or sheep. Trump is draining the swamp, and anyone siding with the gators is one of those two things.

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  19. mke shupp says:

    @Kurtz:

    Draining the swamp, eh? So there must be some White House or Senate blueprint for recreating the FBI and other agencies in some form that absolutely ensures no more secretive investigations of political candidates or other people accused only by rumor and innuendo. Please tell us about it. Work through the details for us. Give us a timeline for enactment and some idea of when the improvements will be implemented.

    Enquiring minds want to know. Please answer. We the people deserve to know what our political leaders are doing in our behalf. I’m sure you agree.

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  20. Kurtz says:

    @mke shupp:

    It’s in the file labeled “Recreate FBI Plan–second revised.” It is in my upper right desk drawer.

    I also keep my plan to replace Obamacare in the same drawer. It is labeled “Romneycare [scribbled out] GOP Healthcare Plan.”

    But that file is empty at the moment.

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  21. Just nutha ignint cracker says:

    @gVOR08: It keeps coming back to the saying “Every nation gets the government it deserves.”

    And in chimes Anybody of… to reinforce the message 2 clicks down thread. Wowzers, Penny!

  22. al Ameda says:

    @Anybody of No Importance:
    Pretty sure Merrick Garland agrees with you on that ‘DACA’ stuff

  23. Kathy says:

    @Gustopher:

    As Howard Dean said, even folks with a confederate flag on the back of their pickup truck deserve health care.

    Free vasectomies? By all means.

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  24. rachel says:

    The Founding Fathers build a series of defensive walls and check points against too much power being held by one person into the Constitution, but a fortress wall is only as effective as all the the people manning it.

  25. Kylopod says:

    @Michael Reynolds: I think the bottom line in discussing the structural flaws in our country’s system is that the US came first in modern democracies, so the Founders had nothing to compare it against, and many of the elements they put forth were a counterreaction against the British system. Later democracies had the benefit of trial and error enabling them to avoid many of these problems. Americans’ pride in their system is based on a combination of ignorance of how other countries work and a fallacious belief that because we came first, that makes us better than the rest, when in a lot of ways the opposite is the case.

  26. Moosebreath says:

    @rachel:

    “The Founding Fathers build a series of defensive walls and check points against too much power being held by one person into the Constitution, but a fortress wall is only as effective as all the the people manning it.”

    I think this is exactly right. And when 46% of the people manning the fortress would rather burn it down than accept letting the remainder have a voice in how the fortress should be guarded, that is a formula for disaster.

  27. Matt says:

    @senyordave: I’ve been here since the early days and I’ve seen no decline. The only change I’ve seen is a drift from a republican viewpoint to that of a more moderate perspective with James himself being more a conservative than a Republican these days. Granted I really didn’t start commenting until some years back. I was just a ghost reading what others had to say.