Are America’s Constitutional Checks and Balances Fatally Flawed?

The triangular polygon is showing the effects of stress on its angles. The checks are not checking, and the system is out of balance

By Anil Madan

A friend asked: “How long can Trump go on like this? Can he be brought under control? I replied: “He believes that he is doing what the people elected him to do. That belief is a flaw not only in his thinking but in our system of checks and balances. So, yes, there are forces within the system that can rein him in, but they are a long way from coalescing. I’m afraid we are stuck with half the country cheering him on and half the country lamenting what he is doing. Withal, the courts are declaring many an Executive Order (EO) unconstitutional or illegal, but there is the age-old question of the power of the courts to enforce their orders if the President chooses to ignore them.”

“From the inception of the Republic that started this great experiment in government by consent of the governed, Americans have long extolled the robustness of the checks and balances that keep the tripartite structure of our government in familiar and comfortable tension. After all, isn’t a triangle the strongest polygon? Indeed, there has been a sense of infallibility about this system of checks and balances…” Pic – The New York Times

My friend asked: “Why do people support him?” I said: “That’s an interesting question and I just saw a very fascinating poll that sheds some light on it. He said: “Why don’t you write about these subjects?” So, let us explore.

From the inception of the Republic that started this great experiment in government by consent of the governed, Americans have long extolled the robustness of the checks and balances that keep the tripartite structure of our government in familiar and comfortable tension. After all, isn’t a triangle the strongest polygon? Indeed, there has been a sense of infallibility about this system of checks and balances.

And therein lies the problem. Out of comfort comes complacency. What we have failed to recognize is that our system, democratic in conception, championing rule by the majority, allows the majority to take absolute control and rule as an autocracy. So far, we have been lucky. But why? We do not have to look past the Declaration of Independence in which, those brave signers of the document saw the need to show “a decent respect to the opinions of mankind” to declare the causes which impelled them to the separation from the English monarch.

Missing in today’s world is that “decent respect” by the Executive for the other branches of government, and the endorsement of the President’s party leaders of that disrespect.

Now, we have a President who declares that the pronouncements he ran on during the election are the reason he was elected and, therefore, he is merely following the will of the People. But a decent respect for the opinions of the rest of the people is what has restrained past presidents from assuming that their campaign pledges transmute to a national mandate.

The party that takes control of the House of Representatives elects the Speaker of the House, while the party that takes control of the Senate elects the Majority Leader. These leaders have close to absolute control over the agenda of the legislative body. The committees and subcommittees set up to conduct hearings are all chaired by a Representative or Senator from the majority party which has a majority of seats in the committee and, therefore, virtually absolute control over approval of nominees and of proposed legislation to be reported to the chamber. Then such matters fall under the control of the Speaker or Senate Majority Leader.

The Constitution has what is known as the origination clause, requiring all bills for raising revenue to originate in the House. Passage of a bill in the Senate requires at least a 60-vote majority, but an artificial construct called reconciliation, allows budget-related bills to be passed by a simple majority thereby giving the majority party even more clout. Various procedural manoeuvers allow non-budget matters to be included within bills subject to reconciliation.

Added to these is the idea that the President, in the exercise of his Executive authority, can direct actions by issuing Executive Orders. Since the doctrine of separation of powers unmistakably vests the legislative power in Congress, what amounts to presidential legislation by fiat, should be clearly rejected by the courts. But this is not always the case. So, we have seen President Trump issuing Executive Orders directing the deportation of immigrants without hearings, and announcing tariffs on other nations, and actions to defund scientific and medical research, and imposing sanctions on universities and much more.

The courts have been called on to rule these actions unconstitutional and they have. But such proceedings take time and whereas courts can reinstate grants previously funded by Congress, the Executive cannot be forced by a court to enter a new contract with any particular institution. This is where the system has a major stress point. Harvard may well have its grants reinstated only to find that it gets no new money at least until Trump is no longer president.

So, what about the poll I mentioned? There are two aspects to this. First, there is the tactic employed by the Trump administration known as the “flood the zone” approach. This involves rapid-fire Executive actions to overwhelm the Democrats and indeed the populace. So, we saw in the early days of Trump 2.0 the announcement of pardons for all those convicted of the assault on the Capitol on January 6, 2021, inspectors general terminated across the board, a federal hiring freeze and layoffs of federal employees, the roundup and deportation of immigrants without hearings, retaliatory actions against law firms, revocation of security clearances for officials from past administrations including President Biden himself, announcement of an end to birthright citizenship, a declaration that diversity, equity and inclusion programs represent unacceptable discrimination, and major shifts in US foreign policy.

This flood-the-zone approach has essentially disoriented Democrats who are the opposition party. In the midst of the chaos that has ensued, their messages are just noise compared to the signal of Executive strength and boldness that Trump’s actions convey.

Then, there is the effect that this flood of information has on the public. The New York Times and Siena College conducted a poll showing that although only 42% of those polled approved of Mr Trump’s job as President, almost half of that cohort were ignorant about the actions he had taken and had not heard much about the decisions his administration had made.

Take for example the cases of Abrego Garcia, the man whom the administration acknowledges was wrongly deported to El Salvador, or Mahmoud Khalil who was stripped of his green card (permanent residence status) and ordered deported for pro-Palestinian activism. 55% of those who approved of Trump’s actions on immigration had not heard about the Abrego Garcia case and the same was true of 54% who had not heard of the Khalil case.

One-third of the voters who approved of Trump’s handling of the economy had not heard of the fluctuations of the stock market, or of the actions taken by Elon Musk and the Department of Government Efficiency (DOGE). The market has recovered since Mr Trump delayed the imposition of sweeping tariffs, but at the beginning of his administration, the S&P 500 index suffered its biggest loss since Gerald Ford was president in 1974. Yet 55% of those who had not heard about the stock market fluctuations supported Trump’s handling of the economy. On the other hand, 41% of those who had heard of the fluctuations still supported his handling of the economy.

6% of those polled said the President should be able to ignore Supreme Court rulings and 15% said they were not sure on this point. 26% said that Presidents should be able to do what they think best even if this means going outside of existing rules and 8% said they didn’t know or refused to answer.

22% got their news from social media and 11% from Fox News. Think about that. One-third of all Americans get a slanted view of the news.

Courts across the country have ruled that the President’s actions against law firms and universities, particularly against Harvard, are unconstitutional. On Wednesday evening, a panel of judges of the US Court of International Trade ruled that in two cases, Trump overstepped his authority by imposing tariffs on China and other US trading partners.  The US Supreme Court will likely rule on these cases as the final arbiter of the Constitution.

In the meantime, that triangular polygon is showing the effects of stress on its angles. The checks are not checking, and the system is out of balance.

Cheerz…
Bwana

Mauritius Times ePaper Friday 30 May 2025