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  • Writer's pictureMario Nicolais

Trump awakens checks and balances

President Donald Trump might present the best chance in decades for our country to return to the vision of our Founding Fathers. Really.

In less than a month, President Trump’s damn-the-torpedoes approach spurred the co-equal branches of government into response. And for the first time decades it appears that the judicial and legislative branches may rise to the challenge.

The most dominate story of President Trump’s fledgling administration revolves around his travel ban. Issued via executive order, the travel ban bypassed not just the legislative process, but apparently the input from federal agencies charged with implementing it. In retrospect, the vetting of the order and its roll-out came up woefully lacking. But that is the CEO-style bravado President Trump always promised to bring to the White House. It is an authoritarian bravado born from working his whole life under a structure where he acted as the sole decision maker — everyone else in the Trump organization worked solely to implement his vision. No doubt he must envision the United States Government should act in like manner.

Of course, that isn’t the vision American’s Founding Father’s had for our country when they drafted the Constitution. As grade-school children could explain, we have a system of checks and balances; a triumvirate system based co-equal branches of government. Only over the past century has the executive branch grown and morphed into its current outsized role. As historian Arthur M. Schlesinger, Jr. discussed in his book, the Imperial Presidency, after President Franklin D. Roosevelt, the office began expanding into powers unintended by the Constitution. While that expansion might seem a natural progression for any president, it could not have happened without the sublimation of the other branches.

As presidents grew stronger, Congress — and particularly the Senate — let its authority atrophy. Once the domain of towering national figures, the Senate historically served as the greatest obstacle to any presidential overreach. Even FDR could not master it. When he attempted to co-opt the judiciary through a proposal to expand the Supreme Court and pack it with his nominees, the Senate stood athwart him. And to assert itself, it blocked nearly all his administration’s future agenda until the United States entered World War II. This despite the nearly 2-1 majority FDR’s own party held in the Senate.

President Trump’s immigration order stirred the same seeds of discord. In a Senate where fellow Republicans control a narrow majority, Republican senators openly criticized and denounced his actions. Longtime stalwarts like Sen. John McCain and rising stars like Colorado’s own Sen. Cory Gardner decried the order. Given President Trump’s penchant for unilateral action, such criticism may be more than an intra-party squabble; instead it may be the awakening of a dormant institutional giant.

Even more dramatically, the judicial branch quelled President Trump’s will through the decisions of federal judges. In action recalling Marbury v. Madison, the original and bedrock ruling of the Supreme Court waylaying executive power and proclaiming its own, courts overruled the new president and ordered its enforcement stopped. After the 9th Circuit Court of Appeals voted unanimously against Trump last week, the ultimate decision seems destined for an expedited path to the Supreme Court. While split 4-4 among “conservative” and “liberal” justices at the moment, the eventual positions of the court may not be as clear-cut as many observers believe. While a tie-vote would simply affirm the decision of the appellate court, it is not beyond the realm of possibility that the court goes in a different direction. It is not inconceivable that the conservative justices, the sentries of original intent, join with liberal justices to send a clear message to the new president: this is neither an aristocracy nor an authoritarian regime.

Over the next four years, President Trump is unlikely to change his approach. Frustration may even drive him to seek greater autonomy. It will be up to the other branches to keep those impulses in check.

Mario Nicolais is a constitutional scholar and advocate, managing partner of KBN Law firm, and general counsel for Vivage Senior Living healthcare organization. Follow him on Twitter @MarioNicolaiEsq

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