Is There Any Real Hope for a "Balance" of Governmental Powers?

Many readers in my age bracket will know that many, perhaps most, of the desiderata of the Trump Administration have been around a long time. Republicans have been pressing the object of ridding the Federal government of "waste, fraud, and abuse" at least since Reagan's day. They have also sought to eliminate the Department of Education, make English the only allowable language, get rid of PBS, abolish any form of affirmative action or other minority assistance, relieve businesses from the alleged hassles produced by "harmful and expensive" regulations, make it easier for sick people to get any drug they may want, strike any restrictions resulting from "the climate change hoax," make it harder for certain cohorts to cast ballots, and on and on and on. None of that stuff is new.

Some of the more "conservative" Presidents have made headway on a number of those measures, but they have been constrained from reaching their hearfelt goals by the fact that, well, they weren't kings: they had to deal with Congress and the courts. The current administration in Washington is sick of those constraints. They want quick and comprehensive results, and have therefore attempted to bypass every institutional brake and dissenting voice and simply do whatever strikes their (perhaps momentary) fancy by way of Executive Order. 

According to Montesquieu and Madison, the democratic way to stop Executives from acting like dictators is to make sure your constitution has a plentiful supply of "checks and balances." We have a lot of those devices in the U.S., so ...maybe we're OK? For remember, the Congress can impeach and remove a President and the Judiciary can declare his or her edicts--whether by Executive Order or otherwise--null and void. Indeed, before the absurd and dangerous Presidential Immunity decision, Presidents could even be prosecuted for criminal behavior.) 

It can't be denied that these "checks" often work in practice, and a judicial one is currently grinding away even as I write this. For in a decision in the case of AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., v. DONALD TRUMP, Judge Susan Illston of the Southern District of California has issued a temporary restraining order that requires a number of gutted and/or moved Federal agencies to be put back where they were, along with the resources and employees that Congress originally intended for them when they gave them specific jobs to do. 

Based on her decision, Judge Illston seems to have been very taken by the briefs of the agencies, unions, municipalities, etc. and not been terribly impressed by the replies to the plaintiffs in this case. And she was also cognizant of a number of precedents. For example, she quotes  this remark from Youngstown Sheet & Tube (1952): 

In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.

One can also find this telling remark from Clinton v. City of New York (1998) in her decision:

The President may create, reorganize, or abolish an office that he established [but the Constitution does not authorize him] to enact, to amend, or to repeal statutes.

Presidents have regularly asked Congress to expedite their authority to reorganize the executive branch, and sometimes have been given that power. In fact, Trump asked for such  authority during his first term and was turned down when the accompanying legislation died in Congress. Thus, Judge Illston concludes, 

The simple proposition that the President may not, without Congress, fundamentally reorganize the federal agencies is not controversial.

I don't disagree with any of that; I just note that the idea that one branch makes laws, another executes them, and a third interprets them, will always make for a highly unstable compound. After all, this decision itself indicates that Congress must be entitled to its own share of executive powers. For it insists that failure to at least attempt to make workplaces, food, air travel or whatever else safer in precisely the manners they have required by their enactments may not be ignored by Presidents or their appointees. Not every type of administration is allowed to the Executive branch.

In addition, two recent Supreme Court opinions, in decisions that were actually sought by Trump supporters at the time, overturned the Chevron deference doctrine, which had allowed agency experts to write regulations that looked, smelled and quacked an awful lot like laws. Furthermore, if the courts end up agreeing with the Trump Administration and overturn this District Court's decision, while there will have been a temporary check, there can hardly be said to have been any  real balance. 

Look at it this way: on the one hand, Congress may pass laws, but the Executive may ignore them and/or the Judiciary may just bat them away. On the other hand, with a friendly court the Executive will be able to legislate via its regulatory powers. That's not all: the Judiciary sometimes does what is essentially both legislating and administering via consent decrees. And, of course, just as Judge Illson will be accused of joining hands with the Democrats in Congress here, the executive and legislative branches sometimes gang up on the judiciary by quickly jiggering laws and administrative methods to get around their decisions. I suppose some Madisonians among us may think that these Rube Goldberg flourishes are patently lovely, but the sad point is that, one way or another, some branch or ugly combine of two of them will always have the upper hand. No "balance" is ever more than momentary. 

Thus, instead of a democracy in which the electorate is the ultimate decider of policy, the only tally that really matters in a Madisonian style government involves, not the citizens, but only the three branches. That is, it makes the crucial question: Which side has at least the votes of two of the branches? That, in a word, is why an authentic democracy must shift some governmental power back to the citizens. And the only sensible way to do it is to guarantee Recall (the power to remove any elected official); Referendum (the  power to repeal any enacted statute or regulation*) and Reversal (the power to overturn certain types of judicial decisions).# 

Without all three of those, periods of dictatorship or other sorts of tyranny are not only ever-possible, but are generally ever-present and operative, whether that condition is obvious or not.

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* In my opinion, these powers should not include the Initiative Petition (the power of the electorate to make rather than repeal laws or regulations). There are a number of reasons for this which I discussed in my book and will not go into at present, though I might discuss this issue again here in a later post.

# Reversal should not be allowed in criminal or civil complaints against individuals. To that extent at least, the judiciary must remain "independent." There is more in my book on this topic as well, though I think the line between appropriate and inappropriate cases for Reversal has probably been better explicated by Ganesh Sitaraman.

Judicial Power and Democracy: The Case of Marine Le Pen

A recent commentary put out by the European Center for Populism Studies takes what I consider a mid-depth dive into the response of Marine Le Pen's supporters to that party leader's recent conviction on corruption charges. In this interesting piece, the author, Julie Van Elslander, opines that Le Pen's 4.6 million Euro misappropriation conviction "is emblematic of what scholars qualify of [sic] post-truth populism: The transformation of political culture by the devaluation of factual correctness over emotional appeal. In a context where public discourse is increasingly shaped by the logic of “alternative facts” – a concept introduced by Trump’s counselor in 2017.  Le Pen’s trial is another example of the way post-truth populists challenge liberal democracies." [Citations are omitted here and throughout.]

The decision has, of course, been appealed, and the required house arrest in the sentence will not take place until that further case is decided. But during the pendency of that appeal, one aspect of Le Pen's sentence is being enforced: she may not be a candidate in the 2027 Presidential elections. As one might expect, Le Pen and her followers cover all the usual bases in their reactions to the decision: 

• She is innocent and is being punished for an administrative error, since she did not personally benefit from any alleged misappropriation. 

• The court is corrupt and the decision was rigged to keep her out of power. 

• It's a purely political, rather than legally correct decision. 

• The judiciary is just a part of the elite that always works against "the people." 

• This is one more example of the left's anti-democratic authoritarianism. 

• Etc. Etc.

That Le Pen herself had earlier called for "life ineligibility for elected officials convicted of embezzlement or corruption" is, naturally, conveniently forgotten, hypocrisy being the custom of nearly all successful politicians. I suppose the most common complaint--so similar to Trump's constant whining--is that Le Pen's trial wasn't "presented as a neutral legal process, but as the proof of a biased system – with Le Pen denouncing a political decision, 'a practice 'we believed to be reserved for authoritarian regimes.'"....On their view the entire event should be characterized as "an unaccountable elite trying to undermine the will of the 'real people' – a homogeneous group not defined by citizenship, but by symbolic alignment with the populist cause."

Ms. Van Elslander is quite dismissive of all the allegedly populist responses mentioned above. And it would be hard, I think, not to agree with her on most of those matters. But there is one rejoinder that she seems to lump with those bulleted above as being also inadmissable, perhaps because of its alleged reflection of "alternative facts." However, I believe that particular response, should have had its actual merits considered. Here it is:

"An online petition launched by National Rally, titled 'Save democracy, save Marine' rapidly gathered thousands of signatures and rallied support over social media, but its message was...about defending her voters’ rights. In an open letter promoting the petition, Jordan Bardella, the young president of the National Rally, described the conviction as an attack against voters: 'They are trying to prevent a candidacy supported by millions of French people, which is well ahead in all the polls. They deprive millions of voters of their choice and therefore their freedom.' This sense of disenfranchisement was further amplified at a public rally held a week later, during which Bardella framed the conviction as an attempt to prevent the National Rally from acceding to power. The conviction, as he claimed, was...about the right of French voters to choose their leader. The rally became a platform where Le Pen was portrayed...as a  a representative of  silenced voters."

My own view of this matter is that this objection has nothing whatever to do with the spreading of information or "alternative facts," but should rather be seen as reflecting a correct view of democratic theory. That is, no judiciary should  place itself above the fundamental rights involved in democratic government. Le Pen's panel were within their rights to have fined or incarcerated her, but they should not have prevented her from running for President. However, it is also true that if she were to be elected, she should not have the power to pardon herself, or expunge her record. Indeed, if imprisoned, she should not be able to remove herself from that condition. Perhaps a newly and legitimately enacted law might be able to do that, but such retroactivity would make that enactment questionable at the very least. The point is that if Le Pen's supporters really want to have the President of France serve all or part of her term under house arrest, so be it: they may not be deprived of the right to make that choice. (For what it may be worth, Boston's Mayor Curley was imprisoned during one of his terms.) 

Matters concerning fundamental democracy should always be understood to be absolutely unalterable. Authentic popular sovereignty requires that even constitutional provisions regarding such matters may not be played with--even by vote of the entire nation. Neither  the Executive nor the Judiciary should be allowed to "run" a polity. Either constitutes a type of  authoritarian tyranny. Only the electorate should have that power, and for that condition to be maintained, the electorate may not mess with fundamental democratic rights either. 

In sum, even if Marine Le Pen's conviction had been handed down by a jury--which it was not, this being purely a three-member-panel affair--it should not have included any prohibition of a run for elective office (or, for that matter, prohibition of her own right to vote.) And this has nothing at all to do with "alternative facts" or "post-truth populism."