We Are the Fourth Branch of Government

In high school, when we studied the separation of powers, I asked my civics teacher: “What happens if the executive branch ignores the judiciary?” He didn’t have much of an answer.

It has happened before. One famous case was President Andrew Jackson’s refusal to enforce a Supreme Court ruling overturning Georgia’s seizure of Cherokee lands. “[Chief Justice] John Marshall has made his decision; now let him enforce it,” a defiant Jackson supposedly said. Georgia expelled the Cherokees in an act of ethnic cleansing known as the Trail of Tears. Lincoln shrugged off a federal judge’s habeas corpus order to release a Confederate sympathizer. The administration of George W. Bush defied the Supreme Court’s ruling in Rasul v. Bush (2004), ordering Guantánamo prisoners be given access to U.S. courts for habeas petitions. Still, presidents usually respect the courts. The Constitution’s checks and balances have mostly held up over 236 years.

But there’s another factor—one that political scientists and teachers like mine rarely mention: we the people. We are the fourth branch of government.

Throughout U.S. history, direct protests have reined in an out-of-control executive branch that disregards the judiciary.  During the civil rights movement of the 1950s and 1960s, state governments in the South routinely violated the 14^th Amendment’s equal protection clause and federal court orders, like Brown v. Board of Education (1954), mandating desegregation. Sustained protest demonstrations like the Montgomery bus boycott and Freedom Rides culminated in the 1963 March on Washington, attended by more than 250,000 people. The March amplified pressure on JFK and Congress, leading to passage of the Civil Rights Act of 1964.

The 1964 Gulf of Tonkin Resolution, based on an incident that likely never happened, allowed LBJ to send troops to Vietnam. But the expansion of the war under Nixon and especially his “secret bombing” of Cambodia in 1970 marked a seeming usurpation by the president of the constitutional assignment under Article I of the right to declare war to Congress. Massive popular demonstrations erupted across thousands of cities in 1969, including a November rally in Washington that drew over 500,000 people, and then the violence of the Kent State shootings in 1970, forced a debate over war powers that led Congress to pass the 1973 War Powers Act, which reaffirmed the legislative branch’s supremacy over military action.

Now we face new executive overreach. President Donald Trump has ignored a federal court order, and signals that he will keep doing so. This time, however, there probably won’t be enough big protests to slow him down.

On March 16^th, the Trump Administration deported 238 alleged Venezuelan gang members to El Salvador. This happened despite an explicit order by U.S. District Judge James Boasberg not to. Airplanes carrying the Venezuelans were ordered to return to the U.S. The administration blew off the federal court order. Salvadoran President Nayib Bukele even mocked the federal court’s impotence, saying, “Oopsie…Too late,” while Trump officials thanked him.

There’s a broader pattern here. In February, a Rhode Island federal judge ruled that the administration had defied his order to unfreeze federal grants. If the executive can ignore the courts without consequence, the judiciary is no longer a co-equal branch.

While the courts risk diminishment, the fourth branch of government that might restore balance—we the people, exercising political force via sustained popular protests in the streets—is all but dead, as are the grassroots organizations, Left of the Democrats, that have typically organized them in response to constitutional crises. American Leftists are splintered into a myriad micro-causes, scared off by state surveillance and repression, and sidetracked by digital slacktivism. Students for a Democratic Society (SDS), a radical Left group, claimed 100,000 members in 1968. Today, the Communist Party, with a few thousand, endorses Democrats.

The Black Lives Matter marches of 2020 rivaled the sustained, high-attendance scale of the 1960s. But they took place during the unique circumstances of the pandemic lockdown. As one BLM demonstrator told me that summer in New York, “I’d usually be at the Yankees game. There’s nothing else to do!”

Failing another lockdown, Trump will likely keep steamrolling the system.

(Ted Rall, the political cartoonist, columnist and graphic novelist, co-hosts the left-vs-right DMZ America podcast with fellow cartoonist Scott Stantis and The TMI Show with political analyst Manila Chan. Subscribe: tedrall.Substack.com.)