NEW YORK – How has the 2016 election in the United States – which gave the Republican Party control of the presidency, the Senate, and the House of Representatives – affected the much-touted system of checks and balances as set out in the country’s constitution? In my view, it has virtually eliminated them.
The checks and balances generated by the judicial branch are certainly in danger. Anything less than constant Democratic filibusters will allow Republicans to fill the vacancy in the Supreme Court that they have blocked Democratic President Barack Obama from filling. And the aging Supreme Court may soon have more slots open – slots currently held by liberal and centrist justices. Republicans therefore have a good chance of creating a conservative majority on the nine-member Supreme Court that may last for decades, especially if they win the presidency again in 2020.
That majority may erode democratic checks, such as the campaign-finance limits that were dealt a devastating blow by the 2010 Citizens United decision. In a 5-4 majority, the Court ruled that corporations are “associations of individuals,” and thus that any limits on the amount of money corporations could spend on political campaigns violated their First Amendment right to freedom of expression.
Republican obstructionism in the Senate has also put other levels of the federal judiciary at risk. During President Barack Obama’s second term in office, the rate at which vacancies in the US District and Circuit Courts were filled fell to its lowest point in 50 years. Trump can now fill rapidly these vacancies with conservative judges who may well erode checks and balances further.
State-generated checks and balances will not escape unscathed, either. Indeed, given new partisan alignments at the state level – Republicans now control an all-time high of 68 of the 99 state legislative chambers and 33 of the 50 governorships – the possibility that states will challenge the federal government is substantially reduced.
This has long-term implications. Since 2013, when another close Supreme Court decision gutted the Voting Rights Act, many, if not most, states with Republican majorities in both chambers have enacted laws and regulations that suppress voting. Such rules include reducing the number of polling stations in minority-dominated areas; requiring photo IDs, such as driver’s licenses, which many minority members do not have; and eliminating both same-day registration and Sunday voting, historically popular among minorities.
A federal appeals court justice struck down a North Carolina law of this sort, because it suppressed African-American turnout with “almost surgical precision.” But if Republicans appoint more judges, such checks will grow rarer. And if voter suppression helps Republicans to win control of more and more state legislatures, more such laws could be enacted.
There is some reason for hope: the ultimate source of checks and balances is the US constitution, which is the hardest of all democratic constitutions to change. To amend it by the normal route requires, among other things, a supermajority of two-thirds in the House of Representatives and the Senate, where the Republicans have nowhere near that kind of dominance.
The other route to constitutional amendment is a vote by two-thirds of state legislatures (34 out of 50 states) to call on Congress to hold a constitutional convention, which then must put forward an amendment that is subsequently ratified by three-quarters of the state legislatures or state conventions. No amendment in US history has ever been approved by this route. But, while the Republicans would need to gain control over at least three or four more legislatures to make a credible attempt, the possibility that they could pursue such a strategy should worry people more than it does.
Barring an amendment, the US is protected from some of Trump’s most egregious campaign promises. Proposals like restricting immigration on the basis of religion are unconstitutional. Other damaging proposals can be filibustered by Democrats in the Senate, where Republicans do not have the 60 votes needed to stop them.
To be sure, filibusters could be abolished at the start of the 2017-2018 Senate session. But Republican leaders must worry about a future in which they are in opposition and want to use the filibuster themselves. If they did make such a move, however, they would greatly reduce the Democrats’ oppositional power over the next few years.
In foreign policy, the US has always had few checks on the president, though some external limitations may apply. For example, Trump cannot fulfill his campaign promise immediately to trash the Paris climate agreement – an international deal that all signatories are legally bound to respect for at least four years. He could, however, undermine it, such as by indicating to countries like India that the US will not fulfill its commitments.
In domestic policy, however, Trump will have great scope to act. Most vulnerable is the Affordable Care Act (Obamacare), which has given health-care coverage to 20 million previously uninsured citizens. The 2010 Dodd-Frank financial reforms, aimed at controlling banks and other financial institutions that are “too big to fail,” is also at risk of being undone.
For concerned citizens who want to reestablish checks and balances in America, there are three urgent tasks. First, they should start laying the groundwork to win at least three more Senate seats in 2018. Second, they should act to prevent Republicans from gaining control of three-quarters of state legislatures, thereby opening the way for constitutional amendments. And, third, they must mobilize more of their fellow citizens to reject authoritarian-style tactics and policies and support more inclusive democratic alternatives.
The existence of compelling alternatives is the most important check on populist politicians with authoritarian tendencies who win power through the vote. By the next presidential election, US voters, like their British counterparts who voted in favor of Brexit, may be experiencing “buyer’s remorse.” But this is not enough; attractive and credible alternatives must be forged.