What Are the Checks and Balances?

By Mona Charen

September 23, 2016 6 min read

This election year makes a mockery of past complaints about the "lesser of two evils." That cliche has been trotted out in every election of my lifetime. In every previous contest, though, the choice was not between evils. It was often between flawed candidates (think George W. Bush) and bad candidates (e.g., Al Gore or John Kerry).

This year's decision is different. Hillary Clinton would be a conventional bad candidate (in a substantive, not stylistic, sense) were it not for the revelations about the email server. Her deception, her greed, her progressive views are all terrible (if dismayingly familiar), but the indifference to national security she demonstrated in the use of a private server (on which she did, despite denials, transmit classified information) places her on a plane that no national candidate has occupied before. She should be disqualified for commander in chief.

Donald Trump, too, should be debarred. Commentary Magazine's John Podhoretz likened the gradual acceptance of Trump on the right to the human response to putrid odors. "After about the first 45 seconds, disgust abates as the brain accustoms itself." I cannot think of a more striking example of defining deviancy down.

In order to make their peace with Trump, some apologists argue that the "guardrails" of the American constitutional system are robust enough to withstand even the depredations of an unstable, mendacious would-be autocrat.

I wouldn't care to test that gamble under the best of conditions. If something is truly precious, you don't want to risk its safety. You wouldn't set fire to the White House secure in the knowledge that the sprinkler system is in working order.

And these are hardly the best of conditions. The Founders included the Electoral College in the Constitution to guard against demagogues, or in Alexander Hamilton's words, men with "talents for low intrigue, and the little arts of popularity" but lacking the requisite "ability and virtue." The Electoral College, as originally envisioned, is a dead letter today. So much for that guardrail.

What checks and balances remain on an out-of-control president?

If Clinton is elected, assuming that it is not a landslide that sweeps in a Democratic House and Senate, the Congress will oppose her. She will not get her universal pre-K or tax increases or "free" college tuition or a "public option" in Obamacare or the Paycheck Fairness Act. She could still do damage through regulation. The abuse of executive discretion during the Obama years shows just how much latitude presidents now enjoy to impose their will through the executive agencies. The leeching of power out of Congress and to the executive has been ongoing for decades, but Obama was particularly flagrant in abusing power to impose policies — e.g., climate rules and health law changes — traditionally reserved for the legislative branch.

Would the courts be able to thwart Clinton? To a point. Even the Democratic appointees to the Supreme Court ruled against Obama on a number of executive power cases. Then again, what if the president flouts the courts as Andrew Jackson did?

Is the press a check on abuse of power? Will it cover a Hillary Clinton presidency the way it covered Bill Clinton's (aggressively) or the way it covered Obama's (pusillanimously)? I'd guess the former, but who knows? Also, the press is held in such low regard by the public that it may not even qualify as a guardrail.

What checks would there be on a President Trump? Presumably, he'd have a Congress of his (lately acquired) party. If he were to attempt to impose some of the left-of-center policies he favors — universal health care, for example — would the Republican Congress oppose him? What about on trade? Or raising the federal minimum wage? Punishing American companies that move plants overseas? Changing the libel laws? Some of the same people who excoriated the Republican Congress for supposedly "giving Obama everything he wanted" now attempt to reassure Trump opponents that Republicans in Congress would stand up to a president (nominally) of their own party. Almost all Republicans have failed to counter Trump now, before he's invested with the vast powers of the presidency. It's fantasy to imagine that they will find their voices later.

As for the press, they'd oppose Trump as hysterically as ever, but as to their influence, see above. Ditto the courts.

In foreign policy, through law and custom, presidents enjoy tremendous latitude. Always have.

So the institutional guardrails are quite rickety. In the end, the only true guardians of a liberal republic are the people themselves. They must prescribe minimal standards of decency. I will be voting for Evan McMullin, the only candidate (of five) who doesn't pose a threat to our national welfare.

Mona Charen is a Senior Fellow at the Ethics and Public Policy Center. To read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

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