What Are the Checks and Balances?

 

Evan McMullinThis election year makes a mockery of past complaints about the “lesser of two evils.” That cliché 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 or 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 5) who doesn’t pose a threat to our national welfare.

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  1. DrewInWisconsin Member
    DrewInWisconsin
    @DrewInWisconsin

    I’ve long held the view that if Trump wins the presidency, he will be facing an antagonistic press, an antagonistic Democratic Party, and even a largely antagonistic Republican party.

    If Hillary wins, the press will cover for her exactly as they have done with Obama. (But even more so, since they’ve decided they don’t need to pretend to be unbiased anymore.) The Democrats will surely do Hillary’s bidding. And the Republicans will be their usual spineless selves, refusing to challenge Hillary on anything because they’re afraid someone in the media might say something bad about them.

    If you wish to restore our constitutional checks and balances, really, the only answer is to vote for Trump.

    Nope, I can’t believe I’ve come to that conclusion, either. But there it is. And I think everyone knows it.

    • #1
  2. DrewInWisconsin Member
    DrewInWisconsin
    @DrewInWisconsin

    Here’s Glenn Reynolds coming to the same conclusion from a different angle.

    So if the choice in 2016 is between one bad candidate and another (and it is) the question is, which one will do the least harm. And, judging by the civil service’s behavior, that’s got to be Trump. If Trump tries to target his enemies with the IRS, you can bet that he’ll get a lot of pushback — and the press, instead of explaining it away, will make a huge stink. If Trump engages in influence-peddling, or abuses secrecy laws, you can bet that, even if Trump’s appointees sit atop the DOJ or FBI, the civil service will ensure that things don’t get swept under the rug. And if Trump wants to go to war, he’ll get far more scrutiny than Hillary will get — or, in cases like her disastrous Libya invasion, has gotten.

    So the message is clear. If you want good government, vote for Trump — he’s the only one who will make this whole checks-and-balances thing work.

    • #2
  3. BD Member
    BD
    @

    “When Halperin asked if a President McMullin would appoint Supreme Court justices who would overturn the case nullifying state marriage protection laws nationwide, Obergfell v. Hodges, he replied, ‘I wouldn’t'”.

    That’s some constitutionalist.

    • #3
  4. DrewInWisconsin Member
    DrewInWisconsin
    @DrewInWisconsin

    And then looking at it another way, if we want Democrats and self-described liberals (who are frequently anything but liberal) to remember that freedom and liberty are good things, then we need to let them feel threatened with losing it. If we want them to remember that there are Constitutional constraints on the executive branch, that an all-powerful and authoritarian government is a bad thing, then we need to teach them to fear. They didn’t care a bit about Obama’s anti-liberty agenda or his power-grabbing. But you can bet they’ll care about Trump’s. I say we let them experience with Trump what we’ve experienced with Obama over the last 8 years. I say we give them an imperial Presidency, and we give it good and hard.
    It’s a gamble, but it might bring them to their senses.

    • #4
  5. Jager Coolidge
    Jager
    @Jager

    Mona Charen: I will be voting for Evan McMullin, the only candidate (of 5) who doesn’t pose a threat to our national welfare.

    What Blue State (Clinton State) will Mr. McMullin win or, to set the bar lower, even be competitive in?

    If McMullin can only draw voters away from Trump, all he can do is insure Clinton wins. If he does not take States from Clinton she wins.

    • #5
  6. Guruforhire Inactive
    Guruforhire
    @Guruforhire

    DrewInWisconsin:And then looking at it another way, if we want Democrats and self-described liberals (who are frequently anything but liberal) to remember that freedom and liberty are good things, then we need to let them feel threatened with losing it. If we want them to remember that there are Constitutional constraints on the executive branch, that an all-powerful and authoritarian government is a bad thing, then we need to teach them to fear. They didn’t care a bit about Obama’s anti-liberty agenda or his power-grabbing. But you can bet they’ll care about Trump’s. I say we let them experience with Trump what we’ve experienced with Obama over the last 8 years. I say we give them an imperial Presidency, and we give it good and hard.
    It’s a gamble, but it might bring them to their senses.

    Retaliate and then forgive is the optimal strategy.  They have to know pain to not punch people.  Constraints on us, will never be on them, unless we make them bleed.

    • #6
  7. Theodoric of Freiberg Member
    Theodoric of Freiberg
    @TheodoricofFreiberg

    Mona Charen: This election year makes a mockery of past complaints about the “lesser of two evils.” That cliché 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).

    I submit that the 2008 and 2012 elections were between flawed candidates (McCain and Romney) and an evil one (Obama).

    A couple of thoughts:

    • That’s a pretty good indictment of the U.S. constitution, Ms. Charen. I agree.
    • Unfortunately, if you’re going to vote for Evan McMullin in Virginia, you might just as well stay home.
    • Celebrity now trumps statesmanship. Pun intended.
    • #7
  8. Publius Inactive
    Publius
    @Publius

    Mona Charen: 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 5) who doesn’t pose a threat to our national welfare.

    There also should be minimum standards of qualifications.  I think the article is well reasoned, but I don’t agree with the conclusion of “Therefore, McMullin”. He seems like a nice enough fellow and has done some impressive things in his career, but I don’t see his resume being one that gives me confidence that he could perform well in such a senior executive position at this phase in his life.

    • #8
  9. WI Con Member
    WI Con
    @WICon

    @drewinwisconsin was much more constructive and principled in demolishing this rationalized mush than any of us here. The twists and inversions of logic, misapplications of history and delusional perceptions of the adversaries/enemies we face are, as your nemesis’ would characterizize – sad.

    There’s “phoning it in” and there’s not even that. This was that.

    • #9
  10. Doctor Robert Member
    Doctor Robert
    @DoctorRobert

    Dearest God, how I tire of this argument.

    Mona, Get Real.

    A Herself victory will bring in a POTUS of indescribable greed and ego, an anti-American Dem congress, infinite liberal judges and bureaucrats up one end and down the other.  The corruption will be Caligulean in scope.  The impositions on our civil liberties will be numerous and onerous.

    A Trump victory will bring a POTUS who recognizes the need to seal the border, reduce illegals, reduce the influx of invading Muslims, protect the country and support business.  Having a non-enthralled Rep congress will prevent any excesses.

    Get Real, Mona.

    Stop pouting.  Get off your fainting couch.  Trump may be uncouth but he’s not a traitor. Voting for Evan McMullen guarantees Herself’s election.

    Get Real.

    And tell Jay to Get Real too.  I used to love listening to you guys, but your never-Trump holier-than-thou attitude gags me.  Politics is the art of the Possible.

    Get Real.

    Six years ago I developed a chronic medical condition that limits me.  I got used to that. I got real.

    We have an imperfect candidate. Get used to it.  Stop pouting.

    Get Real.

    • #10
  11. Lois Lane Coolidge
    Lois Lane
    @LoisLane

    Publius: I don’t see his resume being one that gives me confidence that he could perform well in such a senior executive position at this phase in his life.

    I think it is fair to question his experience, but she is not saying he is the best candidate.  Rather, he is the only acceptable candidate.

    Keep in mind.  The Founding Fathers thought virtue and the desire to serve for the sake of service were the most important qualifications for a president.  That’s the mold Washington made.  None of the other candidates can fit in that mold at all.

    • #11
  12. Lois Lane Coolidge
    Lois Lane
    @LoisLane

    Doctor Robert:We have an imperfect candidate. Get used to it. Stop pouting.

    Get Real.

    Stop pouting?  Get real???

    Correction.  You have an imperfect candidate.   But you talk a lot like him.  So there’s that.  ;)

    • #12
  13. Publius Inactive
    Publius
    @Publius

    Lois Lane:

    Publius: I don’t see his resume being one that gives me confidence that he could perform well in such a senior executive position at this phase in his life.

    I think it is fair to question his experience, but she is not saying he is the best candidate. Rather, he is the only acceptable candidate.

    Keep in mind. The Founding Fathers thought virtue and the desire to serve for the sake of service were the most important qualifications for a president. That’s the mold Washington made. None of the other candidates can fit in that mold at all.

    Oh, I understand.  I don’t think it’s unreasonable to vote for McMullin, but I just can’t bring myself to do it given that I don’t see this as an entry-level executive position.

    I recognize that there are a bunch of different ways for reasonable people to run the math on this election. I’m leaving the ballot item blank, others run the math and come up Trump, and Mona’s numbers equal McMullin. I understand all of the reasoning.

    • #13
  14. WI Con Member
    WI Con
    @WICon

    Lois Lane:

    Publius: I don’t see his resume being one that gives me confidence that he could perform well in such a senior executive position at this phase in his life.

    I think it is fair to question his experience, but she is not saying he is the best candidate. Rather, he is the only acceptable candidate.

    Keep in mind. The Founding Fathers thought virtue and the desire to serve for the sake of service were the most important qualifications for a president. That’s the mold Washington made. None of the other candidates can fit in that mold at all.

    Washington. Hamilton and Jefferson weren’t running against Clinton or Obama.

    • #14
  15. Knotwise the Poet Member
    Knotwise the Poet
    @KnotwisethePoet

    I have no fondness for Trump.  I raise my eyebrows when I read people commenting about him being “flawed,” which I consider a huge understatement.  If he is elected I am worried the results could be disastrous.

    However, I find the idea that a President Hillary would somehow represent less danger to the Constitution and checks-and-balances than Trump ridiculous.  Hillary is corrupt to the core, and when in power she always get’s away with it, even when it’s plain as day that she’s guilty.

    Witness the recent email scandal:Image result for she's guilty as hell meme

    What’s terrifying about the whole email scandal is not just her indifference to national security issues and the mountain of lies she brazenly told to protect herself, but the fact that the FBI revealed all this awful stuff and then said “No, we’re not recommending charges.  No evidence of criminal intent.”  WHAT!?

    As others have pointed out, the media will leap upon any scandalous behavior or choices made by Trump.  Some Republicans may go to the mat for him, but if he does something way out of line, I do think there are plenty of GOP members who will call him out on it (witness GOP members criticizing him for his comments on the Hispanic judge a month or two back).

    If Hillary is President, the media will drag its feet or flat out refuse to hold her accountable for any nonsense, and the Democrats, as always, will circle the wagons.

    • #15
  16. Knotwise the Poet Member
    Knotwise the Poet
    @KnotwisethePoet

    Both candidates are unfit for office this year, but if I have to bet on which one is going to be held more accountable for poor decisions and have their power more effectively checked, yeah, I’m betting Trump.

    • #16
  17. Jager Coolidge
    Jager
    @Jager

    Lois Lane: I think it is fair to question his experience, but she is not saying he is the best candidate. Rather, he is the only acceptable candidate.

    Is he really a candidate though? Frankly I had forgotten about him all together.

    I have seen no ads. I have seen no PAC. Jill Stien of the Green Party polls at like 4% nationally. Evan McMullen is not included in the polling.

    Other than a media tour a few weeks ago, and some inclusion on the Ricochet podcasts, no one knows who he is and nothing so far is changing that with less than 60 days ’til the election.

    • #17
  18. James Lileks Contributor
    James Lileks
    @jameslileks

    DrewInWisconsin: And then looking at it another way, if we want Democrats and self-described liberals (who are frequently anything but liberal) to remember that freedom and liberty are good things, then we need to let them feel threatened with losing it.

    Agreed, but I suspect they will react not from a renewed awareness of principles, but simply a fit over consequences they don’t like. There are liberals for whom the Constitution matters – well, parts of it – but for authoritarians who want society reshaped along a certain set of diktats with a heavy state hand to shape and direct, the Constitution is an impediment.

    • #18
  19. Lois Lane Coolidge
    Lois Lane
    @LoisLane

    WI Con: Washington. Hamilton and Jefferson weren’t running against Clinton or Obama.

    No.  And Hamilton despised Jefferson.  But if we recall why Alex sucked it up in what was a very unhappy election for him to vote for Jefferson when the other choice was Burr, I believe character and identifiable, rational ideology had something to do with how he cast his vote.  I may be wrong, but that’s how I remember it.  ;)

    (Oh.  Just in case we aren’t clear.  I’m not voting for Hillary.)

    Jager: Is he really a candidate though? Frankly I had forgotten about him all together.

    Yes, he’s a real candidate.  He’s eligible as a “write-in” in my state.  I’m thrilled he’ll be at the Texas Tribune Festival this weekend giving the closing speech.

    I’m sorry you don’t remember him.  (Those other two do suck the oxygen out of the room to the point of suffocation.  Must be this caused your blackout?)

    In all seriousness, since McMullin’s strategy is focused on disrupting the majority in the electoral college, I’d think you’d need to be in a mountain state to hear from him a lot.

    Regardless.  He serves a purpose.  He means people like me will show up, and that matters for the down ballot.

    • #19
  20. Jager Coolidge
    Jager
    @Jager

    Lois Lane: In all seriousness, since McMullin’s strategy is focused on disrupting the majority in the electoral college, I’d think you’d need to be in a mountain state to hear from him a lot

    How will he disrupt the majority in the electoral college?

    I guess this is a variation of my first comment on this thread. It may be possible for him to keep Trump from winning, maybe. Unless he wins a “blue” state, he cannot keep Clinton from winning.

    So great he wins Utah or Idaho ( I don’t think this will happen but for the sake of argument lets say he wins one or more Red States) how does this stop Clinton from getting a majority?

    To push the election to the house, he has to win states away from both candidates or hope that Trump does amazing in purple states to keep Hillary out but McMullin can win red states to keep Trump out. This seems complicated and unlikely.

    • #20
  21. Lois Lane Coolidge
    Lois Lane
    @LoisLane

    Jager: To push the election to the house, he has to win states away from both candidates or hope that Trump does amazing in purple states to keep Hillary out but McMullin can win red states to keep Trump out. This seems complicated and unlikely.

    First, you’re completely right.

    The most likely states to win would flip from Trump instead of Clinton.

    However, if Trump himself makes the race super close by flipping a few of the blue, then Evan only needs to be on the board to possibly deny both Trump and Clinton the White House.  (That would be glorious, yes?)

    To do this, you’d have to create a perfect storm, which is definitely complicated and totally unlikely.  You are absolutely correct.  I am very intellectually honest, so I get–and will openly say–that I’m voting for a unicorn.

    However, the other two candidates are an orc and the White Witch.

    Therefore, the only thing I can do with my little vote is to try to make a statement… to openly rally around those who are creating a future hill on which some conservatives will be able to proclaim with actual credibility, “The Orange One was not okay for us and neither was the Shrew.  This guy expressed our values.  

    That’s a step towards something new, which I think is required now.

    That isn’t magical thinking.

    That is called “taking the long view.”

    So… Yeah.

    McMullin 2016!

    • #21
  22. Lois Lane Coolidge
    Lois Lane
    @LoisLane

    (Oh!  I also believe if McMullin wasn’t in the race, many of the people who will vote for him would just stay home.)

    • #22
  23. rico Inactive
    rico
    @rico

    Mona Charen: I will be voting for Evan McMullin, the only candidate (of 5) who doesn’t pose a threat to our national welfare.

    I will be voting for Donald Trump, the only candidate (of 5) whose election can counter a threat to our national welfare.

    • #23
  24. Ball Diamond Ball Inactive
    Ball Diamond Ball
    @BallDiamondBall

    Mona, you have stated that you are basically alright with Hillary except for the email fiasco.  Yet this is among the least of her sins, and is the one toward which all the others have been scooted for defense.  Which is why it matters.

    For me, Benghazi matters a lot.  For you, not at all.  Nor Libya in general, Syria, retreat from Afghanistan and betrayal of Iraq.  I do not think it is unfair to view a Hillary presidency as largely an extension of the Obama debacle.  Therefore neither does the IRS scandal seem to bother you, likewise the impact of ObamaCare, the incipient race war being shoved at us, and the utter corruption of formerly reliable arms of government, such as the FBI.  Yet you have found a fig leaf to allow your anti-Trumpism to not simply be called pro-Clintonism.  Which is why you are voting for Evam McMcullin, the only candidate of the five (panj) running who doesn’t pose a threat to a damned thing anywhere, ever.

    Now that’s visceral.

    • #24
  25. Ball Diamond Ball Inactive
    Ball Diamond Ball
    @BallDiamondBall

    Mona, I just noticed that your title for this post is “Where are the Checks and Balances?”

    I join you fully in wondering this aloud, and with dedication, not mere curiosity, as I presume likewise of you, based upon your willingness to throw your vote away.

    Except that like many others, I wondered this aloud years and years ago.  I watched Republicans Congresses cede their authority to regulatory bodies in the Executive, and then complain to the Supreme Court to do something about it. I watched the Executive arrogate the power of legislation to itself, and the Supreme Court defend its own dignity over the integrity of the Constitution.

    The case for liberty was abandoned by all but a few deeply flawed men such as Ron Paul.  Ted Cruz was pilloried for daring to upset the “We’ll win later but not now” status quo.

    I cannot square in my mind how those who opposed a shutdown in October 2013, based on the argument to “not rock the boat” can now flee from a popular Republican candidate because he might rock the… oh.

    You are staring are the remaining checks and balances in the face, and you do not like them — viscerally.  Pity, then, that the other checks and balances are gone.  They went unlamented in their passing except by a few.  We the deeply flawed.

    • #25
  26. rico Inactive
    rico
    @rico

    Lois Lane:Therefore, the only thing I can do with my little vote is to try to make a statement… to openly rally around those who are creating a future hill on which some conservatives will be able to proclaim with actual credibility, “The Orange One was not okay for us and neither was the Shrew.  This guy expressed our values.  

    That’s a step towards something new, which I think is required now.

    That isn’t magical thinking.

    That is called “taking the long view.”

    So… Yeah.

    McMullin 2016!

    I’m okay with people voting for whichever candidate makes them feel good. Why anyone feels good about McMullin is what I don’t understand. He’s merely a front man for a campaign to prevent Trump from winning. He’s a political mercenary. His financial backers chose Rick Wilson as their prime media advocate. Here is a sample of his work. Enjoy!

    • #26
  27. Mr. Conservative Inactive
    Mr. Conservative
    @mrconservative

    What if there is no “lessor of two evils”?  What if the two major party candidates are BOTH evil, just evil in different ways that are difficult to quantify and compare, especially from this vantage point.  What’s more evil?–the appointment of super-liberal,  anti-Constitution Supreme Court justices or giving Putin a free hand to reenslave Eastern Europe, reversing what we won in the Cold War?  (Both are disastrous). I am not sure I have a basis to weigh those possible outcomes?  So I will vote for a conservative candidate I agree with and respect, Evan McMullen and sleep well.  The next day, I’ll do all I can do to steer whomever is elected  (to the presidency and to Congress) in a more conservative, constitutional direction away from more liberal, bureaucretic leanings (Hillary) or away from more nationalistic, anti-conservative leanings (Trump).  Here I stand, I can do no other.

    • #27
  28. rico Inactive
    rico
    @rico

    Mr. Conservative: So I will vote for a conservative candidate I agree with and respect, Evan McMullen and sleep well.

    Please check the video clip in #26.

    And, sleep well!

    • #28
  29. Ario IronStar Inactive
    Ario IronStar
    @ArioIronStar

    I do not trust Donald Trump, but it’s obvious I don’t have a better choice.  McMullen is not viable.

    What is more surprising (if you’d told me a year ago that I’d think this today, I would have been offended) is that today I have more respect for Donald Trump’s emotional stability than I do for Mona Charen’s.

    • #29
  30. Lois Lane Coolidge
    Lois Lane
    @LoisLane

    rico: His financial backers chose Rick Wilson as their prime media advocate. Here is a sample of his work. Enjoy!

    You seriously don’t think I know who supports whose campaign?  And you’re seriously bothered by *Rick Wilson* while understanding, I suppose, all that Donald Trump’s surrogates have said this last year?  Seriously?  I mean… Really?  *That* clip disqualifies a candidate in your mind?

    I’ll sleep fine, thanks.

    I respect that you’ve come to a different conclusion that I have about the election.

    Mr. Conservative: What if the two major party candidates are BOTH evil, just evil in different ways that are difficult to quantify and compare, especially from this vantage point.

    I think they are.  Just evil in different ways.

    So I think that a lot of Republicans are engaging in much more magical thinking than I am–I’m voting for a unicorn–by pretending their guy hasn’t shown them who he is.

    And I think when people berate Mona–attack her in vicious, little ways whenever she posts something–they remind me exactly why I will politely say “no thanks” to either of the top candidates in 2016.

    I say this understanding that both are so horrible that I no longer feel I know who will win.  I can only look beyond them to try and find the new hill to which I feel many people who will reluctantly vote for Trump will go in the future, whatever happens in November.

    • #30
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