“L'état, C'est Moi” (Louis XIV, Donald I)

When writing in Federalist 51 about the importance of providing guardrails around the powers that “We the People” necessarily grant to government, James Madison famously said in part:

“It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

Madison was looking for a middle position here. If human beings were completely good, we wouldn’t need government; if human beings were completely evil, we wouldn’t be capable of self-government. His view was that guardrails on power make self-government possible.

Those guardrails, to use a spatial description, are both vertical and horizontal. They are vertical in the sense that the Constitution divides power between state governments and the federal government, and they are horizontal in the sense that the Constitution provides for the checks and balances we call the separation of powers among the federal legislative branch, executive branch, and judicial branch.

The problem is that checks and balances work only if elected officials have the integrity and courage (“cojones,” as it were) to check and balance. To understand this, we need to look at the idea of separation of powers in a little more detail.

Political scientist Richard Neustadt famously stated long ago that, strictly speaking, the Constitution created not a government of separated powers, but rather a government of shared powers in separate institutions. An easy way to grasp this distinction is to recall taking lessons in driver’s education.

In my day, the layout of the driver’s-ed car normally had the student driver in the driver’s seat, the instructor riding shotgun, and perhaps two more students in the back seat. What was special about that car? The student driver controlled the steering wheel, the accelerator, and the brake, but, of central importance, the driver’s-ed instructor also had a brake. He or she could not accelerate or steer the car, but the car went nowhere if he put his foot on the extra brake.

This means that while the student driver had most of the control over driving the car, that control was not exclusive; for obvious safety reasons, the instructor had to allow the student to drive. The lesson for our separation of powers is that the president has most executive powers, Congress has most legislative powers, and the courts have most judicial powers, but each branch has its own set of brakes over the other two. There is overlap rather than complete independence.

This works, however, only if the elected (House, Senate, president) and appointed federal officials are willing to do their jobs of checking and balancing. That is why Madison held in Federalist 51 that “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition.”

This means that members of each branch must be willing to recognize and defend their own institutional prerogatives against encroachment by the other branches. In particular, consider the Senate and House oath of office (in part): “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic . . . .”

That oath of office for both institutions, significantly, is not, “I do solemnly swear (or affirm) that I will support and defend the President of the United States against all enemies, foreign and domestic . . . .”

The problem is that Constitution separated powers so well that for policy purposes there needed to be some way to cooperate and work across those divisions. Hence, political parties appeared. The danger is that partisan desire to cooperate across branches might become so intense as to override the constitutional duty to defend each branch’s powers.

Thus, as we face the current issue of impoundment—viz., whether a president can refuse to spend money appropriated by Congress—raised by this week’s attempted spending freeze, note this statement in Politico: “President Donald Trump has declared an all-out war on congressional power. And his allies on Capitol Hill aren’t doing much to fend off the invasion.” Whether out of support for him or fear of him, those allies are saying in effect, l'état, c'est Trump.

Please understand that this is not a partisan point. Remember—and believe it or not—one day there will be a Democratic president. Do you want even a Democratic president to have the powers Trump is claiming? No American president of any political party is supposed to aspire to be an absolute monarch.

Trump might have been the ultimate authority in his own company, but neither the president nor ANY other official occupies such a position in American government. There is no such position in American government—that was Madison’s whole point in Federalist 51.

The ultimate authority in the American political system is vested by “We the People” not in a president of any political party, nor in either house of Congress or even Congress as a whole. We vest that ultimate authority in the Constitution itself, which is why all officeholders swear or affirm an oath to obey it.

We need to bear in mind Ben Franklin’s famous answer to the question of what the Philadelphia Convention gave us: “A republic, if you can keep it.”

That “if” seems particularly concerning at present.

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