Checks and Balances Are Dead

Checks and balances, our teachers taught us, were America’s ace in the hole. Human beings are highly fallible and easily corruptible. Because the Founding Fathers knew that—“The truth is that all men having power ought to be mistrusted,” James Madison warned—

they crafted the three branches of the new federal government as counterweights in which the natural impulse of officials to jealously preserve their power and prerogatives was accepted as a given rather than as an evil to be controlled. Accepting human nature as it was formed the basis of what was credited as one of the most ingenious systems ever created in the West.

Checks and balances, it turns out, are bullshit. Because sometimes, like now, the desire to accrue and preserve personal and organizational power takes a back seat to sycophancy and cowardice.

The 25th Amendment created a mechanism for suspending the authority of a physically or otherwise unfit president. Those who drafted it invested that power in the hands of an office holder with great interest in enforcing it, the vice president who would take over. All they needed to remove an incompetent or dangerous head of state was a simple majority vote of the cabinet.

What these lawmakers failed to consider were party loyalty and the desire not to be perceived as self-dealing. Kamala Harris knew Joe Biden wasn’t up to the job. But she wouldn’t have triggered the 25th, even had the president been more of a wreck. Party fealty trumped everything, even patriotism.

Now we find ourselves with a president who has gone rogue. Not only has his lust for emoluments achieved the level of a 20^th-century third-world dictator, deporting U.S. citizens and deploying federal troops to American cities in the absence of civil strife, he is bombing and invading and threatening to attack countries without the flimsiest thread of a legal pretext, dressed up in brazen lies and misrepresentations—some of those countries are close U.S. allies—and he keeps threatening to seek a third term. All these actions are serious violations of the constitution, federal law, international law, traditional norms and common decency.

If this situation were framed theoretically, as a blank TK without naming a specific person or party, most political experts would predict a bipartisan response. The president would be removed, whether by the 25^th, pressuring him to resign, or via impeachment. Congress would act to protect its war powers, the party whose president was acting erratically would seek to staunch the bleeding by refusing to defend the indefensible, and the courts would demand that laws be enforced.

Alas, we don’t live in theoreticals. As heir apparent, the vice president is biding his time until his coronation for the nomination. The GOP has embraced a base-above-all strategy, which has been working, and is thus reflexively disinclined to cooperate with any Democratic initiative, least of all one that would involve the removal of their own two-term president. The Republican-led House is the most supine in memory—perhaps ever—so much so that it refuses even to protect its power over the purse, not to mention its war powers. (In fairness, congresses of both parties have surrendered their control of the military to the executive branch.)

Checks and balances rely on the assumption that officials prioritize powers and privileges. These days, however, politicians believe that they maintain their positions only as long as they curry favor with the president. (Note that I said “president” rather than Trump. The same calculus applied under Democrats.) Our system has evolved. 250 years into the American experiment, elected officials crave titles and status above all else, and the money they confer. Power is still important, but not for them to hold personally. Leaders like Speaker Mike Johnson sell their power to the president, who himself exercises his expanded prerogatives, primarily to build his empire of official grift.

At first glance, the lickspittle rulings of the Republican majority of the Supreme Court appear to deviate from the new model. Don’t justices enjoy guaranteed lifetime employment?

Like a home buyer signing a lien on “their” home to a bank, most of the six obtained endorsements by the right-wing Federalist Society, whose imprimatur Trump and his GOP predecessors required to nominate them to the court. Conservative Supreme Court nominees mortgaged their would-have-been future judicial independence by signaling their adherence to outlandish, conservative legal doctrines like “originalism”—a concept considered fringe a generation ago, but now so au courant with the Right that even Biden’s “liberal” justice told the Senate she believed in it. True, they could welsh on that bargain once they sat on the bench. But then they would risk impeachment over some unrelated matter. The justices’ sellout differs only in chronology.

At the root of assurances that checks and balances worked and will (eventually) work again is the question: who or what will save us?

Not the press—it’s dead. Not a peaceful protest movement—there isn’t one, and if there were one there is little reason to believe it would be effective. And certainly not checks and balances.

(Ted Rall, the political cartoonist, columnist and graphic novelist, is the author of “Never Mind the Democrats. Here’s What’s Left.” Subscribe: tedrall.Substack.com. He is co-host of the podcast “DeProgram with Ted Rall and John Kiriakou.”)