'Checks and balances' don't work; more proof from Iraq assassination

Gordon L. Weil

"Checks and balances" are the hallmark of the American political system.

But it is increasingly clear that they don't work.

The idea is to have three equal branches of government, legislative, executive and judicial. If each can limit the scope of action of the other two, the result should be a government that avoids dangerous excess and abides by the rules of the relationship.

If any proof is needed that the system is failing, President Trump provided it last week.

In a test of military force against Iranian elements operating in Iraq, the U.S. retaliated for an attack that killed an American and the Iranians in turn besieged the American Embassy in Baghdad. Then, in Iraq, the U.S. killed Qassem Soleimani, a top Iranian general, responsible for some of his country's brutal aggression.

How was Trump authorized to assassinate a military officer moving publicly in a country that accepted his presence? In these days of terrorism, Congress can no longer strictly use its war power. It allows the president to carry out military action in case of an "imminent" threat.

In other words, the president is authorized by Congress to act on his own when the danger to the U.S. is likely to occur so quickly that a defensive action is needed before Congress could approve it. The president is then required to report rapidly to Congress on the action taken.

Trump officials were slow to report and, when they did, they could cite no immediate threat. Without doubt, Soleimani was a murderous and dangerous enemy, but there was no clear or consistent reason given to Congress or the public that there was an imminent threat.

So what? Congress can pass laws but, if the president flaunts them, there's not much it can do short of impeachment. But, as we are seeing, that can become a partisan battle and it's quite rare. The third branch of government gets no role at all. So, despite the law, there are no checks and balances.

Admittedly, this assassination is an extreme case. More generally, the drafters of the Constitution meant Congress to wield most power and to limit the president so as to prevent the revival of royal rule. Now, public policy has become so complex that Congress routinely passes its legislative powers to the executive branch.

At the same time as Congress has been losing control of the president and the executive branch, the Supreme Court has been whittling down its authority. The Court has ruled that it decides if laws are constitutional, allowing it to nullify congressional action.

If it was possible to discern the pecking order of the power of checks and balances foreseen by the founders, it was Congress first, president second, courts third. Today, it looks more like president first, courts second, Congress third.

Perhaps this is an inevitable historical evolution. The founders certainly understood that the world would change and their original plan would need to be updated.

The Constitution itself may need to evolve to deal with a changed world. But it is regarded as being carved in stone. Many worry that if the Constitution were opened for amendment, some basic rights would be eliminated. So Americans are essentially left with a changing system controlled by the government itself.

If anything, the situation in Maine is even worse. Every bill passed by the Legislature proclaims that it was enacted by the "People of the State of Maine." Of course, it was only adopted by their legislative representatives.

Maine people can themselves adopt legislation. They may initiate bills and require referendums on legislative proposals, even going so far as to halt a law going into effect. They may appropriate money.

In 2014, more than two-thirds of Maine voters approved borrowing $14.5 million to be spent on affordable housing. Those funds would make it possible for the state to receive outside funds to multiply the effect of the state spending.

Gov. Paul LePage refused to carry out his administrative responsibility to let the state bonds be issued. He said the money would enrich the builders, which would invest too little themselves. Despite the vote, the governor ignored the state's ultimate legislators.

The Legislature did nothing. LePage got away with it. It did not even try to strip the governor of his administrative power over later bond issues. Where were the checks and balances?

Eventually Gov. Janet Mills allowed the bonds to go forward and matching funds became available. But years had gone by and people had suffered as result of the delay.

When people hear of "checks and balances," they should understand it's false advertising.