Opinion | Will our Constitution’s system of checks and balances hold?

Carl Levin served as a U.S. senator from Michigan from 1979 to 2015. He is chair of the Levin Center at Wayne Law School.

While our attention is focused on the war against the coronavirus, and rightfully so, there is another war of sorts taking place in federal courts that could do serious, long-lasting damage to the touchstones of our Constitution and the insurers of our democratic form of government.  The separation of powers; our system of checks and balances; adherence to the principle of co-equal branches of government – these are currently under attack in an unprecedented effort by President Trump and his administration to strip Congress of its capacity to serve as a check on abusive conduct by the executive branch.  

Under our Constitution, Congress is designed to act as a check on a runaway president.  Congress has the power of the purse, must confirm key executive branch appointments, and can investigate and expose wrongdoing.  That last power is absolutely critical. President Woodrow Wilson said the power of Congress to investigate is even more important than the power to legislate, and the Supreme Court has been defending Congress’ investigative authority for nearly a century.  In a 1927 case, McGrain v. Daugherty, the Supreme Court stated: “the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function.” In a 1955 case, Quinn v. United States, the Court cautioned:  “[w]ithout the power to investigate — including of course the authority to compel testimony, either through its own processes or through judicial trial — Congress could be seriously handicapped in its efforts to exercise its constitutional function wisely and effectively.”  The Supreme Court also declared that Congress’ right to investigate “may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress.” 

Now comes President Trump who has rejected, across-the-board, Congress’ right to obtain information related to his conduct.  To block Congress’ information requests, he has filed two cases before the Supreme Court attempting to quash subpoenas from congressional committees seeking financial information about him from his accounting firm and two banks.  In another case, he is opposing a congressional subpoena seeking testimony from former White House counsel, Donald McGahn, regarding actions taken by the President that may involve obstructing Congress or the Department of Justice.  And in a third case he has directed the IRS to refuse to turn over his tax returns to the House Ways and Means Committee despite a statute explicitly granting Congress that authority with respect to any taxpayer.  

In the cases seeking President Trump’s financial records, two Courts of Appeals have ruled, with one dissenting judge, in favor of Congress’ right to the information, but no one knows if the Supreme Court will agree.  In the McGahn case, a three-judge panel of the Court of Appeals, with one judge dissenting, ruled that federal courts do not have the authority to decide a subpoena fight between the legislative and executive branches, leaving Congress and the President to fight it out without judicial intervention.  The case is so important that the House of Representatives has asked the full Court of Appeals to reconsider the panel’s decision and that request has been granted. In the IRS case, the judge has suspended his decision until the McGahn is decided.  

How these cases are decided may determine for decades to come whether and how Congress — and the public — will be able to find out the facts behind presidential actions and hold in check possible wrongdoing by the president.  

Just think of a world without Congress’ power to investigate the president.  In that world, we would not have known important facts about the Teapot Dome Scandal in the 1920s, or Watergate, or Iran-Contra, or the Fast and Furious gun case.  And those examples just scratch the surface of all of the important investigations of the president and the executive branch that Congress has conducted.  

Almost as daunting is a world in which Congress has no alternative but to enforce its subpoenas, not by going to court, but by taking drastic action against the President with all the collateral damage that could hurt the country as a whole.  For example, if foreclosed from going to the court, Congress might try to cut off funding for the White House or delay enactment of appropriations bills needed to support critical government programs. Or Congress could be forced to arrest executive branch officials and hold them until they agree to testify.  Those kinds of aggressive actions would signal a new level of political warfare that is the exact opposite of what is needed to calm the raging partisanship now dividing the country.

Yet this future is what now confronts us as President Trump, in an unprecedented act, has flatly denied Congress’ authority to gather information about him and his administration and called on the courts to abandon their past support for Congress’ right to know.  Were the Supreme Court to agree that enforcing congressional subpoenas is beyond the scope of the judiciary’s authority, the President would succeed in blocking the ability of not only Congress but also the courts to act as a check on his authority. 

A large part of my 36 years in the Senate was spent doing investigations and oversight of the executive branch.  My information requests were sometimes challenged by presidents from both parties, but those presidents always recognized Congress’ critical role in our constitutional structure, and we were able to negotiate our way to a meaningful solution.  The wall thrown up by President Trump and his utter disdain for the role of Congress and the courts to act as a check on the executive branch is an affront to our Constitution and to the basic principle that no one – not even the president – is above the law.  

The Levin Center at Wayne Law and the Lugar Center recently co-authored a bipartisan “friend-of-the-court” brief in the Trump cases now before the Supreme Court; our brief strongly supports Congress’ right to investigate facts related to the executive branch.  In those Supreme Court cases and the McGahn case, what is at stake is almost 100 years of precedents in which federal courts enforced the checks and balances that make our Constitution a bulwark against abuse of power.  If the courts were to abandon their support for those checks and balances, the consequences for our democracy would be dire.

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Comments

Dena Arner
Wed, 04/08/2020 - 1:25pm

The Trump Administration and it's Republican allies are the biggest threat to democracy in modern times.

No
Wed, 04/08/2020 - 4:46pm

On the contrary - Deep state swamp creatures like Carl Levin are the real threat. You have succumbed to Trump Derangement Syndrome, my condolences to your family for their loss.

Minuteman
Wed, 04/08/2020 - 3:22pm

Carl,
You swamp-smelling, deep-state lackey,
Nice hit job, pretending to be worried about checks and balances while actually doing the bidding of your deep state masters.
Don't worry about the constitution. Us military, militia and armed everyday patriots will see to it that the constitution and its amendments are not infringed upon.
Go back to your swamp. I'm sure you have some illegal dealings to assist with.

Bernadette
Thu, 04/09/2020 - 1:29pm

It takes courage to standup for the truth. Unlike cowards who resort to childish name calling, false opinions.

Publius
Wed, 04/08/2020 - 4:53pm

Last I checked, our system of Government was a Constitutionally Limited Republic. A Democracy is mob rule and it was this lack of understanding between the two systems, which resulted in creatures like Levin and his brother being elected. Even more amusing is when socialists, or contemporary democrats (same thing) claim the Constitution is under assault. Indeed it is, by them.

Jefferson
Fri, 04/10/2020 - 3:54pm

Well spoken!!!

Barry Visel
Wed, 04/08/2020 - 4:59pm

Mr Levin, checks and balances have been a joke for at least 100 years. One of the most egregious occasions was when FDR threatened to load the Supreme Court with his appointments to get approval for his New Deal, which the Court knew was unconstitutional. So, the Court bailed. It’s been downhill ever since. You refer to the Constitution in your comments. I would direct your attention to Article 1, Section 8 which defines the LIMITED authorities We the People assigned to the Federal Government. Please explain how the insane growth of the Federal Government occurred in spite of the checks and balances you say should be in place.

karla
Thu, 04/09/2020 - 9:18am

My God, get off the Roosevelt issue already.
The system operated exactly how it was designed to operate. The President took action Congress deemed inappropriate and Congress prevented its implementation. That's called checks and balances.
Our problem today is that republicans have eliminated checks on the President; even when his actions are clearly detrimental to the entire country. A "trial" without witnesses, really?
The federal government's job is to protect the nation when states can't or won't. Current events highlight the need for a well funded, strong federal government.

Barry Visel
Fri, 04/10/2020 - 11:39pm

Ahhh, the New Deal was put in place...Congress didn’t block anything, and FDR threatened the Court so they wouldn’t block his program either. So, I don’t understand your point?

Barry Visel
Wed, 04/08/2020 - 7:50pm

Mr Levin...an afterthought to my original comments. Would you please make us aware of your pension, health care and any other benefits you receive from your time representing Michigan in D.C., and identify which of those benefits are not available to the citizens you represented, if any. Thanks

Kevin Grand
Wed, 04/08/2020 - 8:10pm

Stormy Daniels didn't work for the democrats. Neither did the Russian collusion delusion. Impeachment failed spectacularly. So did his party's criticism of the Trump Administrations Huwan Virus response. The above is nothing more than the latest attempt from democrats desperate for anything to keep Pres. Trump from getting re-elected in November.

They will fail.

Now, if Mr. Levin is now suddenly an advocate for defending our Constitution, let him prove it.

Gov. Whitmer has ignored that same Constitution, which Mr. Levin which claims to defend, when writing her clearly unconstitutional executive orders, claiming that they "promote safety".

I didn't know that "promoting safety" was a valid excuse for ignoring your oath of office, which included supporting the Bill of Rights.

She has clearly violated our First, Second (ranges & classes ordered closed per her fiat), Fourth, Fifth, Sixth and Seventh Amendments.

So, if Mr. Levin want us to believe the little tale he has spun above, then he can show how committed he is to our Constitution by going after Gov. Whitmer's unremitting assault against it.

I'm certain that he'll get right on that.

Jefferson
Fri, 04/10/2020 - 3:55pm

Levin endorsed Biden without even a single hair sniff. He doesn't care about the constitution.

Bryan Watson
Thu, 04/09/2020 - 9:17am

Do not overlook the president's arbitrary purging of Inspectors General, offices which are specifically charged (by Congress) with oversight of the departments and agencies of the executive branch. Nor should we overlook the president's dismissal of the Attorney General and subordinate members of the Department of Justice, the agency charged with bringing enforcement actions against those who misuse or abuse their office. The message is clear: Donald Trump is above the law. Donald Trump's friends are above the law. Anyone who tries to act otherwise will be removed from office and publicly abused.

Don't mistake this for a system failure or for a new standard for presidents. This only applies to Donald and friends. That message too is clear. When the Senate Republicans went along with this, they did it for Donald only - they will certainly subject the next Democratic president to the strictures of the law, but Donald is above the law.

So no, the system is Constitutional system is still intact - with this singular exception of Donald Trump (and his family, of course), to whom neither the Constitution nor the law should apply. That's the judgment of the Republican Party and, having watched the Republican Party devolve over the last 40 years, should be a surprise to no one.

Arjay
Thu, 04/09/2020 - 9:41am

I don’t care if President Trump steps on a few toes while he is forging ahead to end the COVID-19 crisis. He is getting things done while the democrats are holding things up by having impeachment hearings, delaying the rescue bill, and trying to revive hearings on why did we even have this crisis. Sec. Pompeo is getting Americans safely home while the Dems are worrying if there is enough funding for the arts. Trump is advocating for using methods that have been proven in other countries while the Dems are trying to hang him for suggesting it. A dying man will grasp at anything to continue living.

This event has surely shown me who we need and who we do not need in government.

DougL
Thu, 04/09/2020 - 10:35am

For many decades there has been controversy about checks and balances. We have had congress granting powers to the president, such as war powers, that are the constitutional responsibility of congress. Now we have an issue with the president trying to exceed the limits of presidential powers. We had that same issue under President Obama, but he was not as polarizing as President Trump, so it did not generate the controversy that President Trump does. I believe that our system of checks and balances is indeed working. The issues mentioned by Mr. Levin are being reviewed by the Supreme Court. Congress has the power to overrule the president. The system is working.

Gerry Niedermaier
Thu, 04/09/2020 - 1:26pm

My God Ms. Agnes.
Sounds to me like most the responders to Mr. Levin's statement need to not wear masks, meet with as many of their cronies as they can, attend church services en masse, tear down the "do not pass" tape put up by authorities obeying Governor Whitmer's directives and let their kids play together, have huge parties, etc. Works for me dudes...LOL.

Jefferson
Fri, 04/10/2020 - 3:56pm

We have been doing so and guess what... Nobody's dying :)