Practical “Checks and Balances”

It’s clear now that our constitutional checks and balances have failed to restrain President Trump’s excesses.   Three examples are, or should be, top of mind.

  First, Trump has decimated our once-thriving federal administration by arbitrarily cutting funds appropriated  by Congress, firing legions of experts with irreplaceable training and experience, and closing whole agencies.  He has completely abolished USAID, Voice of America, the Department of Education, and all internal federal DEI (“diversity, equity, and inclusion”) offices.   According to Google AI, he has also reduced the following agencies’ staff by more than half: (1) the Consumer Financial Protection Bureau, (2) the Department of Housing and Urban Development (in the middle of our current nationwide housing crisis!), (3) the Centers for Medicare and Medicaid Services (CMS), and (4) certain subagencies of the Department of Agriculture.  He did all this without a hint of debate, let alone specific approval, in Congress.

  Second, Trump has used specious claims of “emergency” powers to kill what appear to have been 115 civilian non-combatants, in 35 attacks by our military on the high seas.   Finally, our Supreme Court has immunized him from any criminal prosecution for these or like events as long as they are arguably within the course of his official duties.  He now could, as a matter of law, have someone shot down on Fifth Avenue (as he claimed he himself could do during his first campaign) without consequence, as long as he gave the order while president and could credibly claim he did it for our country.

  As these dismal facts indicate, our supine Congress and Supreme Court have failed abjectly to perform their constitutional duties to restrain a rogue president.  Our right wing has a theory—the so-called “unitary executive”—to “justify” that failure.  But even if you accept that theory, it doesn’t go far enough for this.

The theory of the “unitary executive”  gives the President sole control of the Executive Branch as a matter of Executive administration.  It doesn’t even purport to release him from constitutional checks and balances of the other branches, let alone the common sense, general criminal law and basic human morality.  It doesn’t come close to validating  Trump’s recent claim that only his “own morality” and “own mind” restrain him.  Isn’t that a prerogative of kings and dictators like Putin?

Now that the failure of reason and utter cowardice on the part of the other two branches have nullified our constitutional checks and balances, what have we got?

Fortunately, recent history reveals two practical checks and balances that seem to work.  One is the stock market.  The other is Fox’ so-called “pundits.”   Not only do these two checks actually work in this time of unprecedented, near-universal political cowardice and sycophancy.   They work much faster than the largely abandoned constitutional ones.

Let’s take the stock market first.  Remember when Trump put 100% tariffs on many Chinese goods by imperial decree?   That had the effect of doubling the prices of what, at the time, were about 13% of all our imports.  The stock market didn’t like that idea, and it tanked.   In short order (a couple of weeks) Trump “negotiated” a reduction to 50% tariffs and limited them to selected, high-practical-impact goods.

   The same thing happened recently with Greenland.  Trump made clear that he wanted to acquire Greenland by any means, including military conquest, mostly because his own real-estate psychology told him nothing short of “owning” it would do.  His several  declarations of intent caused what may have been the biggest and most consequential rupture in NATO since its founding.  Then his pledge to get his way by re-imposing exorbitant tariffs tanked the stock markets yet again. As a result, Trump backed off, explicitly excluding the use of force and mindless tariffs just days ago at Davos.

The effect of Fox commentary was more subtle but also clear.  In both cases, Fox commentators dropped their usual fawning sycophancy toward the President and became critical.  According to Google AI, the following Fox commentators criticized Trump’s comments on a possible takeover of Greenland by force this January:  Howard Kurtz, Brit Hume, and Bret Baier, with Kurtz reporting a poll showing 68% of Republicans opposed to the idea. 

It’s hard to untangle the effects of these two causes on Trump.  He’s notorious for making and changing decisions based on the last advice he hears.  So we have to watch out for the “post hoc ergo propter hoc” fallacy (Latin: “after this, therefore because of this”) in attributing effect to cause.   But Trump himself and some of his advisers have noted his reliance on markets and Fox for approval, so attribution of effect to cause is reasonable.

We will soon know whether our Supreme Court is totally supine.   It has just heard oral arguments in a case about whether presidents have power to impose, fix, change and revoke tariffs, alone and at will, as Trump has done.

If Roberts and his right-wing crew have the slightest concern for the nation’s economy, and for the mere appearance that they are doing their constitutional jobs, the decision will come in a few weeks.  But they may continue their cowardly penchant for putting off fundamental decisions, often relying on their “emergency docket” or partial, impractical “decisions,” to make practically impactful choices that they can credibly call “legal” or “preliminary.”  If they continue this craven approach,  we may get the decision in June, at the end of the current Term, and/or it may not fully resolve the problem.

In the meantime, we Americans are—or at least we have been—a practical people.   We have two institutions whose impact on Trump’s decisions have been clear and palpable, at least as concerns lunatic-fringe initiatives with clear and powerful negative economic repercussions.   We also have a more top-heavy economy than at any time since our First Gilded Age.

   So what could we do?   More practically, what could a hypothetical cadre of public-spirited billionaires and maybe a couple of trillionaires do?

They could exert their economic power, and their insiders’ knowledge of high finance, individually or collectively, to magnify the stock markets’ reaction to the President’s worst, most stupid, and most impractical initiatives.  They could buy Fox, throw out the worst and most sycophantic of its pundits, and make Fox serve as an even more responsive check on the President’s dumbest and most dangerous initiatives, if only the ones that most negatively affect our economy.

I think they could.  I hope they will.  After all, our “forefathers” in Britain got a democracy not from any popular rebellion or push from “the people.”  They got it because some landed aristocrats decided to protect their own personal interests.  It was, after all, the Barons who faced off against King John on the fields of Runnymede and gave us Magna Carta.

  Maybe a critical mass of our billionaires—even tech bros—could step up to the plate.  After all, the rich don’t do especially well in times of chaos, war and revolution.  They do better than the rest of us, but mostly they just survive.  Ask what remains of the Krupp and Thyssen families in Germany about the Third Reich.

  No one does well when a collective loss of Reason and common sense causes the existing order to collapse. The rich lose more because they have more to lose. So I wouldn’t say we can count on them, but it’s definitely in their interest to curtail Trump’s dumbest impulses and provide a backstop for us all.