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Concepts of Our Federal System of Government
Separation of power is a set of rules in constitutional law, which keeps the three branches of government namely; executive, judicial and legislative separate. Each branch has exclusive powers so that one single branch does not have all the control-the judiciary has judicial powers, the legislative arm has congressional power and the executive has executive power. These powers are separated and one branch is not allowed to exercise the powers of the other branches. Separation of power is also referred to as the system of checks and balances. Federalism was designed to share power between the national and state governments and consequently limit the power of the national government.
One recent example of the system of Checks and balances in action was the impeachment of G. Thomas Porteous, Jr. judge of the U.S. District Court, Eastern District of Louisiana on grounds of bribery and making false statements under perjury penalty. The House of Representatives as part of its mandate to check on the Judiciary impeached G. Thomas Porteous, Jr. who was later removed from office by Senate which is the part of the legislature that conducts impeachment trials. The case that would even be more relevant and recent would be the impeachment of President Trump that is under trial in the Senate. President Trump was impeached on December 18, 2019, but awaits the senate vote for his removal from office (Wehle). If the Senate does not rule in favor of the impeachment, then he will be acquitted.
An instance of the Federal system checks and balances in action was the ruling by the Supreme Court to allow states to opt-out of President Barack Obama’s Medicaid expansion requirement. The initial ruling by the high court stated that the national government was using federal spending to coerce states to comply with the ideas of Washington, D.C. The major theme of this ruling was how limited Federal authority was and if it was constitutional for the national government to force states to expand Medicaid which was already the most expensive item on state budgets. States that did not comply with this law faced the threat of missing out on federal funds adding up to 10 percent of the total state budget.
The Medicaid ruling allowed states to opt-out of the Medicaid expansion because the national government was using budget allocation to threaten the power of states. The statement of the 7-2 majority rule read that the loss of over 10 percent of state budgets is financial coercion, which gives states no option but to comply with the expansion. It went on to state that Congress had no authority to undermine state powers by ordering them to regulate in accordance with their instructions. It is the duty of Congress to offer the state grants and its right to include conditions accompanying the grants, but the states also reserve the right to a genuine choice of whether to accept or decline.
The Trump Presidency has raised concern over the accumulation of unchecked powers. The activities of the current government suggest that the principle of checks and balances and a Federal system has not been carried out according to the intentions of the founding fathers. President Trump has been involved in numerous scandals, one after the other that would have ended the career of any other politician in the nation’s history. The President has faced adultery charges, bribery, vulgarities, lies, and insults. These charges in addition to apparent self-dealing and global solecisms do not even compare to the alleged capital offenses that have teetered the law like nobody else in the history of the United States.
President Trump was named as an unindicted co-conspirator in two felonies represented in court filings by the Department of Justice which confirmed he held conversations with transition teams about connections with Russia during the campaign period and months leading to his inauguration. These definitely amount to prosecutable crimes and the misrepresentation of these facts by forces controlled by the president has undermined the rule of justice in this regard. Up to this point, Republicans in Congress have looked the other way and abandoned their oversight role. The legislative check on the executive has been completely out of order. With that one branch of government out of the way, only two remain.
The executive and the judiciary are the only two branches remaining that Americans rely on to check the President. However, the executive is under Trump himself. The only individual that has a degree of independence is special counsel Robert Mueller. Unlike the case of President Clinton years ago where congress directed and gave the then Independent Counsel Kenneth Starr power to investigate the president, Mueller can be legally stopped by acting Attorney General Mathew Whitaker from carrying on investigations on their joint boss. However, since Whitaker has not thwarted numerous federal probes into the president and his affiliates is a good sign. It is an indication that these civil servants may, after all, be carrying out their duty to the public behind closed doors. How long that lasts is not for sure.
Then comes the court, the third branch of government completing the system of checks and balances. This discussion begins with the traumatic appointment of Supreme Court Judge Brett Kavanaugh, which was the most undesirable politicization of the federal bench in U.S. history. Federal judges are issued with a life tenure, which requires them to be apolitical. Social and non-governmental organizations such as the Center for American Progress termed this appointment “A representation of the Damaged U.S. Judiciary” (Buchanan). Judge Kavanaugh was an obvious conservative politician who on top of that had faced sexual assault allegations. After these allegations, which constituted 80 ethnic complaints no meaningful investigations by the FBI or the senate were conducted-highlighting the problematic nature of this appointment. These 80 allegations were all dismissed because lower courts where they were filed had no power to try and discipline a Supreme Court justice.
What Kavanaugh represented was a conservative court-packing and the absence of ethical oversight within the judicial branch of government. The conservative court-packing has been the work of wealthy donors who work to guarantee a supply of jurists with conservative ideologues who are out to assert these principles over the law. This court packing has been made possible by the activities of Senate Majority leader Mitch McConnell in the house. During the final years of President Obama, Senator Mitchell made it impossible for him to appoint a judge to the Supreme Court after the demise of Justice Antonin Scalia and also kept an extraordinary 110 judicial positions open in the hope that a Republican president would be elected.
When Trump was elected president, Senator Mitchell shifted the goalposts and made it easier to appoint judges. He thwarted the ability of senators to give a direct opinion on nominees from their individual states and allowed candidates to be confirmed by a simple majority. As a result, President Trump has appointed 150 judges to this day with conservatives filling judicial vacancies at every level, shifting a body that should be apolitical to the right. Another natural result of these efforts by conservatives is the appointment of Judge Kavanaugh. There has been clear evidence that Kavanaugh before and during his appointment is engaged and committed to partisan behavior. Before his first appointment to the judiciary, the U.S. Court of Appeals for the D.C. circuit, he had spent many years in conservative politics.
All this evidence of the activities and construction of the current government suggests that the principles of separation of power are not carried out as was intended by the founding fathers. The executive has control over the judiciary and the legislature both of which are supposed to be independent arms with distinct powers. Because of the conduct of the president, the executive needs checking to avoid an accumulation of unprecedented power. But according to evidence in these discussions, this has already happened and the president is above the law.
Works Cited
Buchanan, M. J. “Brett Kavanaugh: A Representation of the Damaged U.S. Judiciary.” Center for American Progress, 1 Oct. 2019, www.americanprogress.org/issues/courts/news/2019/10/01/475181/brett-kavanaugh-representation-damaged-u-s-judiciary/.
Wehle, K. “The System of Checks and Balances is Finally Waking from Its Two-year Slumber.” TheHill, 4 Jan. 2019, thehill.com/opinion/white-house/423746-the-system-of-checks-and-balances-is-finally-waking-from-its-two-year. Accessed 1 Feb. 2020.
