Are We Down to One Branch of Government?

The Republican-led Congress has essentially abdicated its role. The Supreme Court — with its travel ban decision and especially now with Justice Anthony Kennedy’s retirement — has also indicated it won’t raise many, if any, objections to President Donald Trump’s most discriminatory policies.

To ensure that no one branch of government becomes too powerful and that citizens’ rights are protected, the country’s Founding Fathers created three branches of government. But what happens if two of them are in the pocket of the president? That’s what we’re currently witnessing, and this week has only made it painfully more clear.

I recently asked a national security professional working in the administration what he fears most — war with North Korea? Iran?

“Reelection,” he said. And until 2020, keeping America’s allies and partners believing in the United States as Trump continues his assault on the international order, which the U.S. worked for decades to build and strengthen, he added.

“I feel like I’m slowly watching us turn into Turkey,” another source inside the administration said.

If the view from the outside is grim, it looks far worse to many of those working on the inside.

As the picture grows darker, those who are supposed to act as bulwarks against executive power are throwing up their hands, looking the other way or engaging in delusional wishful thinking.

While the Trump administration burns through cabinet secretaries and White House staffers, racking up scandals right and left, the Republican-led Congress is conducting almost zero oversight of the administration.

Scott Pruitt, the administrator of the Environmental Protection Agency (EPA), has at least 14 ongoing federal investigations into his spending and reported ethics violations, including by the Office of Special Counsel and the EPA inspector general. He is making headlines on a weekly basis for all of the wrong reasons: using taxpayer dollars to buy unnecessary security equipment, sending staffers on shopping trips for expensive personal items like hotel lotions and picking up dry cleaning. And then retaliating against the people who speak up and say: This isn’t right.

Does Congress care? Not really. There have been a few calls for him to go, but no serious pressure is being put on the White House. Earlier this month, House Speaker Paul Ryan (R-Wis.) said when it comes to Pruitt’s scandals, he hasn’t “paid that close attention to them.”

The House’s investigation into whether Trump or his campaign officials conspired with Russia to interfere in the presidential election has collapsed. The Republicans tasked with leading the inquiry are now actively working to protect the president and undermine the work of Special Counsel Robert Mueller.

Across the board, members of Congress, while worried and even appalled in private, are saying next to nothing publicly to stand up to the president when he bashes important norms meant to protect the rule of law and the freedom of the press, when he incites racial tension, or even when he promotes policies with which they fundamentally disagree.

Against this backdrop of congressional failure are a few glimmers of hope. Chief among them: the midterm elections in November. Democrats have a modest chance of taking back the House and a not so good shot at winning the Senate. If either of these two chambers flip, the legislative check on the executive branch will reclaim some of its strength. If they both flip, Trump can expect robust pushback to his agenda, if not outright impeachment. Of course, this doesn’t have to be partisan. At any point, Republicans could exercise their constitutional role and  take a tougher stance against the Trump administration’s excesses.

In the meantime, there are certain policy and budget areas where Congress has so far not fallen in line behind Trump. Congress pushed, almost unanimously, to have sanctions placed on Russia. It refused to gut U.S. foreign aid. And even congressional Republicans have refused to give Trump the money he wants for his border wall. Plus, the Senate Intelligence Committee investigation into Russian interference in the 2016 election continues its work quietly and discreetly, with little overt political interference.

But these small measures in the face of such rampant corruption and the administration’s make-it-up-as-you-go policymaking provides little solace. With no help from Congress, many looked to the judicial branch for some sense of optimism. That is, until this week.  

It was the lower courts that stopped all three iterations of Trump’s travel ban targeting Muslims. And just this week, it was a judge in San Diego who issued an injunction, halting the administration’s cruelest policy to date: separating children from their parents when they crossed the southern border — whether illegally or when seeking asylum. While there is still reason for hope there, Trump and his team are working quickly to reshape the judicial system, filling the federal appeals courts with “young and deeply conservative judges.”

Then came the Supreme Court’s travel ban decision, which was a gut punch to anyone expecting the Court to curb Trump’s worst impulses. Pretending we all live in a bubble, where the executive order banning people from Muslim-majority countries (and North Korea and Venezuela for good, non-discriminatory measure) should be accepted because it’s “facially neutral” and Trump’s history of blatant Islamophobic statements should be forgotten, the Court upheld Trump’s gussied-up Muslim ban.

In her dissent, Justice Sonia Sotomayor acknowledged the Court failed to perform its most basic constitutional duty by rubber stamping a policy that is clearly motivated by anti-Muslim animus.

“Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments,” she wrote. “Because the Court’s decision today has failed in that respect, with profound regret, I dissent.”

Justice Kennedy, who announced his retirement the day after the travel ban decision was announced, instead chose to downplay what should be expected of the courts in his opinion. He wrote:

There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.

What is Justice Kennedy trying to say here? Rick Hasen, a law professor at University of California–Irvine, described it as “a general statement of judicial powerlessness to solve social problems and an abdication of responsibility on the part of the courts to enforce key parts of the Constitution, in favor of a plea for self-restraint on the part of elected officials.”

So, if we’re not to look to the courts or Congress to reign in Trump, where does that leave us? The voting booth, and, if that doesn’t work …

Photo by Ralph Freso/Getty Images

 

About the Author(s)

Kate Brannen

Editorial Director of Just Security; nonresident senior fellow at the Brent Scowcroft Center on International Security at the Atlantic Council; previously senior reporter covering the Pentagon for Foreign Policy Follow her on Twitter (@K8brannen).