“Or Else What?” The Limits of Checks and Balances

America’s founding fathers were wise in many respects. They were revolutionary in setting up a republic, based on the separation of powers and a system of checks and balances. One even presciently warned against the mischief of factions. What they did not foresee was two nationalized factions paralyzing government, a viable means of resolving disputes between elections, and an answer to “or else what?” should one branch refuse to comply with the demands of the other.

This is where congressional Democrats seem to find themselves today. In their aims of carrying out oversight of the executive branch, the new Democratic majority in the House has demanded the Republican administration release a host of documents. Comply with our subpoenas, or else, Democrats have threatened. However, the checks and balances provided for by the Constitution depend on at least some level of voluntary compliance. The executive branch has thus far refused, and there realistically is nothing the legislative branch can do about it.

The House Ways & Means Committee requested the IRS release five years worth of President Trump’s tax returns, and on Monday, Treasury Secretary Steven Mnuchin rejected them, for the third time. “I have determined that the Committee’s request lacks a legitimate legislative purpose,” Mnuchin stated. “The Department is therefore not authorized to disclose the requested returns and return information.” The rejection was not at all unexpected, particularly after acting chief of staff Mick Mulvaney boasted last month that Democrats would “never” get their hands on Trump’s returns. He may be right.

Democrats have also been frustrated by the Justice Department, and Attorney General William Barr’s refusal to turn over the full and un-redacted version of Robert Mueller’s report. House Judiciary Committee Chairman, Rep. Jerry Nadler (D-NY), will meet with the DOJ on Tuesday to “negotiate an accommodation” to their demands. Otherwise, they will proceed Wednesday with a resolution holding Barr in contempt of Congress, a further attempt to persuade the release of the report. Unless Democrats invoke inherent contempt power, or Justice refuses to prosecute Barr, that’s likely to be the end of the matter.

With each possible action, Democrats are treading on risky political ground. Should they lose to the administration in any number of legal battles in court, it could establish a precedent strengthening this or future presidents’ hands in dealing with Congress. Polling suggests their tactics may already be backfiring. President Trump’s approval ratings hit 46% last week, an all-time high in the Gallup poll. Even not acting carries inherent risk for Democrats, with most of the party’s base demanding impeachment.

As Republicans learned eight years ago, divided government still means the President holds all the cards. If Democrats overplay their hand, voters on the fence might rally behind Trump. Folding, however, might turn off Democratic voters and ensure 2016’s past becomes 2020’s prologue.

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Robert Martin (CN Staff)

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