The US Constitution provides for the three branches of government - legislative, executive and judicial - and the system of checks and balances between and among them. These checks and balances are meant to ensure that no single branch is superior to any other and thus that they are co-equal.
The results of the recent impeachment and trial process seem to indicate that while the legislative branch can demand that the executive branch submit documents and provides witnesses, the executive as a co-equal branch does not have to comply. By extension this would imply that the executive would similarly not have to comply with an order from the judicial. Even if the legislative and judicial both make the same demand of the executive, there is no constitutional provision that allows two branches to outvote the third branch. Thus the executive (or the legislative or the judicial) can comply or not as it sees fit with any order from the other branches.
Is this the way it was meant to work, or is the US Constitution a flawed document?
I have been puzzled and troubled by exactly this same point.
Seems to me that the advocates of Executive power during the Bush Administration had a veneer of principle and intellectualism behind their views of the expansive power of the President. This Administration? I think it goes no deeper than “Fuck you, we do what we want.”
The legislative branch can impeach and remove the President or a judge. The fact that it wasn’t successful this time doesn’t mean the check isn’t there, just that the bar is high for this type of action. As it should be.
If the president or judge refused to give up their office then we’d have a full blown Constitutional Crisis, but that hasn’t happened yet.
But the judicial branch really has no remedy for a President who would refuse to obey subpoenas. So is it just coincidence that the current Administration argues that the judicial branch has to weigh in on whether a legislative subpoena is valid? And is it also coincidence that it takes months, or perhaps even years, for the judicial system to come to final decisions on such matters?
I think it was Andrew Jackson versus Supreme Court justice John Marshall, back when, that prompted the former to say “Marshall has made his decision. Now let him try to enforce it!”
The reconciliation of the balance of powers is established less in written law than in precedent.
When someone doesn’t give a shit about precedent and tradition and established processes, it may ultimately hinge on other folks’ willingness to take physical action in accordance with those established precedents.
The simple version is that the executive exercises only executive powers, the legislature only legislative power, and the judicial only judicial powers therefore the three are separate and their powers should never interfere with one another.
That simple version early and often turned out to be wrong. Interbranch disputes happened almost immediately and still happen. The Supreme Court early on decided (some say very conveniently, decided for themselves) that it was the final arbiter of what the Constitution commanded.
Andrew Jackson and Lincoln in wartime notwithstanding, people in government have generally backed the Court when it rules and that makes it sort of the third branch which is more equal than the others.
If a president openly defied the Court and had Justices arrested? Well, we would have a constitutional crisis. It really is just a piece of paper and only works as long as people follow it. The Soviet Constitution had all sorts of beautiful human rights guarantees.
All constitutions depend on people respecting the process which is why many of these hypotheticals claiming that the Constitution cannot possibly say X or Y because the President and 34 Senators could fuck off to Key West and drink for four years and Congress could do nothing!!! are absurd.
For all of his faults, Trump has never defied a court order.
Well, clearly the validity of the subpoena has to be adjudicated. I can’t recall any court-validated subpoena that has been ignored. Am I wrong on this?
Basically, when the executive and the legislative branch disagree, the judicial is the tie-breaker. If the executive subsequently also ignores the judicial, then you have a legitimate crisis (and one would hope there would be more than just Mitt f’n Romney willing to stand up and fight it). But I don’t believe this has happened yet.
Because since Marbury v. Madison, it is the function of the Court to say what the law is. So if the executive and the legislature have a dispute, then the Court says what the law is. It did it in the Nixon case and that brought Nixon down.
I agree with you that the text of the Constitution doesn’t support this, but judicial supremacy has become part of our society through tradition.
Of course as we’ve seen, the Congress also can take action on its own to check a refusal of its subpoena, it just needs a majority in the House and a 2/3ds vote in the Senate to do so.
Further, why should the executive be the branch taking orders from the other two? Why can’t the President, for example, order Congress to assemble at the White House for a meeting? Or why couldn’t the executive or the legislature order the Supreme Court to testify regarding the deliberations before it decided a major case, you know, to help with their nomination process?
Because Congress doesn’t have absolute power. Any body that issues a subpoena allows the subpoena to be challenged for a legal privilege. And who might decide or “judge” whether that assertion of a privilege is proper. I dunno, it’s right on the tip of my tongue, perhaps a judge in some sort of judicial process might decide that.
Imagine if your wife is charged with murder. The State subpoenas you to testify at her trial. You want to assert that in your state you have a privilege not to testify against your spouse. Should the state:
Without force there’s no enforcement. If a prosecutor subpeonas me and I don’t show up, armed uniformed folks will arrive to [del]force[/del] escort me to appear. I can then make my case about whether to testify. If Congress can’t force appearance, it is gutted, castrated. The executive IS king. The king’s minions ARE immune. All hail the king!
Here we have Congress, performing their Constitutional oversight role, investigating high crimes and misdemeanors by the executive, issuing subpeonas that are ignored or appealed to courts [del]stacked by[/del] sympathetic to the executive, and so delaying ruling on the subpeonas until they’re moot.
Imagine if your wife, whom you still like, is charged with murder. The State subpoenas you to testify at her trial. She’ll go free via Statute of Limitations in a few months if you can delay the trial. Should you:
Voluntarily comply for the sake of speedy justice, or
File multiple appeals with the judge, who owes you favors?
Legitimacy is ultimately derived from the consent of the people who are governed. People power is the ultimate check against tyranny. But people have to assert that power. They have to agree on how to assert that power, and how much of it to assert, and when.
The courts force appearance through attorneys. Trump’s attorneys show up to litigate the issue.
If you want to just shit all over the thread by saying that the judicial branch is corrupt (along with the executive) and I suppose the Senate, and the only true patriotic part of the government that deserves any recognition are the Democrats in the House, then have at it.
I thought this thread was serious and not, yet again, another Trump bashing thread.
Well, I think this thread is actually about a key weakness in the system of checks and balances, but a few want to turn it into “how dare you criticize Trump and hurt my feelings!”
It also just seems so odd to me that the basis of this constitutional crisis goes back to the Executive exerting privileged not provided for in any statute, yet judges who criticize judicial activism are so quick to say such privileges need to be taken seriously.
I mean, how can a judge criticize the basis of Roe v Wade as being a judicial fiction because it appears nowhere in the Constitution, but executive privilege is so important despite no legislature ever approving it?
How is it a key weakness? You have a dispute between the executive and legislative, and the third branch makes the call.
Without falling into the Roe v. Wade morass, there are many things that are not specifically, textually stated in the Constitution that nonetheless are a part of widely agreed upon law. To say that Roe v. Wade is wrongly decided because the Constitution doesn’t mention abortion is the short, short summary of the argument which is misleading.
I don’t think anyone says that if you cannot find ink, then it is completely outside of any real constitutional interpretation.
