Straight Talk on Checks and Balances

December 26, 2016 | Revolution Newspaper | revcom.us

 

“Checks and balances” refers to the separation of powers—a system in which legislative, judiciary and executive powers are separated and balanced against each other. The concept was brought forward during the American revolution of 1776, one led by slave-owning planters and urban capitalists. Those who developed it—Madison, above all—saw it as a way to both prevent one faction (of the ruling classes) from becoming too dominant and, through the struggle that would ensue in such a framework, as a way to forge a “national will” to pursue the “national interests” (a will and view of interests, that is, of the two dominant classes in a nation which also contained masses of slaves, indigenous peoples, white artisans and workers, poor whites, etc—classes which were, in different ways, ruled over to pursue the interests of the various ruling class factions). (For more on this whole concept, how it originated and its class character—as well as its applicability to socialist society—see Bob Avakian’s seminal work, Birds Cannot Give Birth to Crocodiles, But Humanity Can Soar Beyond the Horizon, especially “Bourgeois Political Philosophy, Its Limitations and Distortions,” “Bourgeois Democracy: A Reflection of Material Interests and Forces,” “The Notion of ‘Human Nature’—As a Reflection of Capitalist Society,” and “The Basic Nature, and the Constitution, of a Socialist State.”)

Today some people say that the checks and balances of the U.S. Constitution will function as safeguards to prevent the Trump-Pence regime from violating basic democratic rights and the rule of law. Well, let’s look at this separation of powers.

To begin with, there is no separation of powers applied to nuclear weapons. While Congress is supposed to declare war, in actual fact Congress has not issued an actual declaration of war in many years, even though the U.S. has waged and right now is waging many wars; so, clearly, the executive power is essentially unchecked in matters of waging war. Even if Congress were to assert its power and vote to withhold funds from an active war (which is frankly inconceivable in today’s political climate, with the way in which a veritable bi-partisan cult of the military has been built up, and any talk of “not supporting the troops,” no matter what horrendous war crimes those troops are in the process of carrying out, is beyond the pale), the president can not only defy it, but in the case of nuclear weapons, the president has the sole discretion to launch such weapons and can do so either in times of war or peace should he or she deem the U.S. to be under threat. So on these most fundamental concerns—and anyone who is not concerned about Trump having this power after the past week is willfully closing their eyes—there is no check and balance.

What about the judiciary? Won’t the judiciary prevent Trump-Pence from violating people’s rights, from holding them incommunicado, or illegally surveilling them? First, let’s note that the Republican Congress actually violated the separation of powers last year, in refusing to consider Obama’s nominee for the vacant Supreme Court seat. Moreover, they further violated these powers by refusing to consider an unprecedented number of Obama nominees to federal judgeships, to the extent that 30 percent of these judgeships remain open. Separation of powers was clearly violated here, but where was the “check” on them? Nowhere. Now Trump and Pence will fill the judiciary with judges who will make so much turkey hash out of much of what has up to now been regarded as inviolable rights.

Further, suppose a court did order Trump to cease and desist some egregious act? What army would the court call out should the Trump-Pence regime decide to defy the court? Exactly. Should someone in the army or bureaucracy refuse an order from Trump, Trump can fire them until he gets someone who WILL carry out that order. The fired person can file suit, but years will pass before such a suit gets heard and the damage will have long since been done; and again, that leaves out the “bottom line” question of who will enforce the court order.

In short, checks and balances rely on the executive’s recognition of those checks. Is there anything in the way that Trump campaigned or the ways in which he rather baldly usurped the powers of a sitting president in these past few weeks that would make anyone think that Trump would defer to a court order that he disagreed with? And which courts do you expect to do that? The ones that prevented Obama from carrying out the massive illegal and unconstitutional surveillance of U.S. citizens (and people all over the world) which he inherited from the Bush regime—and then strengthened and reinforced? Oh, right, there were no such courts. The ones that prevented Obama from carrying out the assassinations of uncharged U.S. citizens merely for being suspected of “terrorism” or—apparently in the case of Anwar Al-Awaki’s son, murdered at 16 years old two weeks after his father—for being relatives of such suspects? Right again—no such courts.

And then there’s Guantánamo. You remember Guantánamo, don’t you? The Cuban territory that the U.S. illegally holds, on which it detains and tortures people to whom it wishes to deny the right to a trial? The one that Obama promised to close, but didn’t; and which Trump now promises to expand?

“But what about the elections? If they do all these things, they have to face the voters in two years, and then we’ll see.” Yes, then we will—or may—see. After the Republican majorities have further changed the rules to weight things in their direction, outlawing increasing numbers of voters (especially Black and Latino voters) likely to oppose them or isolating them in a few districts... after they have further developed their doctrine of how to strip the powers of elected officials they don’t like as they are doing now, with impunity and outrageousness, to the elected Democratic governor in North Carolina... after there has been a whole atmosphere of intimidation and no doubt worse against Muslims, against immigrants (especially from non-European countries), so as to effectively bar them from even the most narrowly constrained and straitjacketed political activity and expression... after there have been blacklists and purges in academia and government... right.

The election of Trump-Pence occurred at a time when the political system which has enabled the U.S. ruling class to contain even very sharp contradictions and still pursue its interests has broken down. Trump revealed this breakdown and exacerbated it; his claim in campaigning was that “Only I can fix it.” He said in campaigning that he would essentially make the other institutions of government obey his will—most infamously, when asked about generals who might refuse illegal orders that he threatened to give, but more generally as well. It would be wise to believe him; he is claiming a mandate (despite having lost by nearly three million votes) to radically reshape everything and there is nothing and nobody to stop him—other than masses of people, in their millions.

We’ll end with a quote from Bob Avakian, written nearly 20 years ago in reference to the impeachment of Bill Clinton, but—if anything—ringing out with more force today:

This whole politics can be opposed—very powerful opposition to it can be built—but it can only be done by refusing to be bound by the terms set by this system and the political framework within which all of its political representatives think and act. It can be done, not by trying to rely on Clinton and the Democrats, but by relying on and rallying the truly vast numbers of people who have a real interest in opposing this whole program—vast numbers of people among whom there is a stirring and a growing sense, if still largely undeveloped and untapped, that there is a need to stand up against and defeat this program.
(from “The Truth About Right-Wing Conspiracy... And Why Clinton and the Democrats Are No Answer”)

 

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