Tag: checks-and-balances

Checks and Balances, Part 3 (posted 12/8/25)

This is the last of three columns on checks and balances in our government.  And I want everybody to know how difficult it was to stick to this topic today, because I have got such a long line of knucklehead leftists and their recent idiotic shenanigans that I am just dying to mock.  So it’s taking every bit of mature and manly restraint for me to stay on subject.

And regular readers will know that “mature” and “restraint” are not exactly in my natural wheelhouse.  So let me get started before my baser nature kicks in.   (But next column…)

In my last column I discussed the two main ways in which I think the legislature has abdicated its job of checking the other branches. The congress’ fecklessness has empowered the other two branches, helping to create an “imperial presidency” and an “imperial judiciary.”  Because if congress weasels want to keep their offices by becoming gutless castrati, some other branch is going to have to (and usually want to) step into that power vacuum, and the executive and judiciary have done so. 

The Imperial Presidency

The Founders created a pretty strong president; they made him the head of both the civilian and military (as commander in chief) chain of command, and they placed no term limits on him.  (That only changed after FDR.)  He was given veto power over legislation, and a monarchical pardon power too.  But the Founders also created a way for the legislature to over-ride his vetoes, and to impeach him, if things came to that.   

As the government grew, and executive agencies were founded and grew, the presidency gained more power.  Over the years, some legislatures curtailed some of those powers; in addition to creating term limits, they imposed rules requiring him to go to Congress to get a declaration of war if he tried to use the military for too long after responding to an emergency situation.   (That last example suggests some dysfunction, because presidents have been undertaking many military actions while declaring few wars in recent decades.)

One oft-cited bit of evidence that presidents have become too powerful is the huge increase in the number of Executive Orders that have grown in recent years.  However, when I researched it, I was surprised to find that that’s not the case.  The undisputed champions of EO-issuing are FDR (both totally, and on a per-year basis) with 3728 (!), and Woodrow Wilson in a distant second with 1803.  By comparison, Obama’s 276 orders in 8 years, Biden’s 162 in 4 years, and Trump’s 220 in his first term seem modest. 

Of course the substance of the EOs should matter more than their frequency.  If FDR’s only EO  had been the one forcing Japanese-Americans into camps during WWII, it would have been one too many.  And no one would now object to Lincoln’s Emancipation Proclamation (which was an EO), nor to Truman’s desegregating the military or Ike’s desegregating public schools.

Of all three branches of government, I’m most sympathetic to the position that presidents find themselves in, and I see the frequent use of EOs as a necessary evil – with the emphasis more on “necessary” than on “evil.”  

As our congress has become more dysfunctional, a president usually finds himself slogging through mud to get anything done.  If the opposing party has even a slight majority in congress, he can be tied up in endless investigations, and cannot get any regular bill passed through congress at all.  If his party has a slim but not a super-majority, he still can’t break a filibuster to pass legislation, and can only do so through continuing resolutions, which are very limited.  

Thus the rash of EOs at the beginning of Trump’s second term, and the recent policy whiplashing at each change of administration.  Obama’s first EOs canceled Bush policies (closing Gitmo, stopping terrorist detention and interrogation policies, etc.); Trump’s first EOs countered Obama’s (trimming Obamacare damage, closing the border); Biden’s canceled Trump’s (killed the Keystone pipeline, opened the border, free fentanyl for all American kids, etc.).

One more factor that limits the president’s power: as the only one with term limits, the long-term seat-warmers in congress and the deep-state bureaucratic functionaries can just slow-walk and hamper everything he tries to do, and then just out-wait him.    

The Imperial Judiciary.

Just like the other two branches, the judiciary has stepped out of its lane too.  In one way, judges (especially on SCOTUS) are given more power than anyone else in gov’t, since they serve for life and are functionally impervious to any pressure or checks on their behavior.  (I know: technically, they can be impeached, but in reality, that almost never happens.) 

But in another way, judges are supposed to be more tightly checked than the other 2 branches, because they are supposed to keep their own political opinions ENTIRELY out of their rulings; their job is to interpret the laws, not to shape, slant or make them.  In the real world, no human can actually do that perfectly, but things have really fallen apart on this front, as more and more judges (local, appellate and SCOTUS) have IMHO been de facto legislating, by novel “interpretations” that coincidentally change the law to be more in line with their political priors.

Amy Coney-Barrett made this point recently, when she joined all 7 other judges in slapping down Ketanji Brown-Jackson’s “extreme” and nakedly partisan attacks on Trump, and on the other SCOTUS judges, including Kagan and Sotomayor, in an opinion that is “at odds with more than two centuries of precedent, not to mention the Constitution itself.”  In her response to Brown-Jackson’s rant (read it and see!), Barrett pointed out that “Justice Jackson decries an imperial executive while embracing an imperial judiciary.”

As a conservative, I see about 90% of the problems with an imperial judiciary coming from the left, and they all stem from the differing judicial philosophies.  Conservatives are supposed to be “originalists” or “strict constructionists,” who do their best to get back to the original meaning of the constitution, and rule based on that, even when – especially when! – the outcome goes against their own political preferences. 

Scalia provided a great example of that approach, when he declared that he hated flag burning and would outlaw it if he could…but that’s not what the constitution supported, so he ruled against his own desires. 

The lefty approach is the so-called “living document” view, in which the constitution’s meaning is continually in flux…and coincidentally enough, they always find that it is fluxing toward exactly their own political preferences.  This mindset results in what we conservatives call “activist judges” – robed partisans who continually give leftists their chosen policies through judicial rulings that they could never have achieved democratically and legislatively.

Two influential examples of this are Roe vs. Wade in 1973 and Obergefell in 2015.  For two hundred years, nobody had imagined that a right to abortion existed in the Constitution, but then 5 partisans in robes peered into the “emanations and penumbras” of that document and “discovered” that it had been there all along.  For nearly 250 years nobody had detected gay marriage in the constitution, but once again, 5 robed activists were shocked to find exactly what they hoped to find there. 

Unexpectedly!

To be fair, the division between judicial philosophies isn’t always so clear.  There are real challenges in ruling on issues that hadn’t existed in the 18th and 19th centuries, but affect our lives today.  And while conservative originalists place great weight on “stare decisis,” or following precedent, they necessarily overturn a precedent every time they reverse an earlier ruling that they find was unconstitutional.

Thus lefties screamed hypocrisy when the Roberts court overturned Roe, and again when they overturned Chevron. But of course those same lefties are huge hypocrites on the issue of stare decisis, citing it when it bolsters their political priors, and shredding it when it doesn’t.  (Dred Scott and Plessy vs. Ferguson were once precedents, and no one still argues that slavery and forced segregation should still exist.)   After all, Roe overturned 200 years of a precedent which every sentient judge – and person, for that matter – agreed on: the constitution is silent on abortion. 

And 38 seconds after Roe was issued, the left carved it on a stone tablet, proclaiming that it is and would always be inviolable precedent, until the end of time.   

The second Trump administration has brought the imperial judiciary issue into stark relief.  There are three levels of federal courts: district courts (with local jurisdiction), circuit courts (i.e. appeals courts) and SCOTUS.  There are 677 district court judges, and too many of them are hard partisan leftists, and they’ve been lodging TROs against virtually everything Trump has tried to do. 

Not all of the challenges are frivolous, and I expect that the administration will lose on some of them, including the way Trump’s done tariffs, and probably on stopping birth-right citizenship, too.  That last one is really a shame, because I’ve read enough on that topic to think that the Constitution didn’t require giving citizenship to those born to people who are in the country illegally.  But I don’t have enough confidence in the six supposedly originalist justices to stick to the law on that issue. 

Having said that, most of the TROs have been ridiculously, nakedly partisan.  Many local judges have said that Trump shouldn’t have control of executive agencies (whether in firing personnel, or shrinking or eliminating those agencies), shouldn’t be able to enforce our immigration laws, or to direct foreign policy.  Most of them have also declared that their local court judgement should automatically apply to the entire country.

Thankfully, Trump has been batting around .900 on reversing the TROs so far, because if he weren’t, our judicial system would be completely unworkable.  You obviously cannot have 677 local judges acting as de facto presidents, claiming for themselves the right to micromanage and reverse every action the president takes. 

Some of the lower courts’ more transparently egregious power grabs have been reversed by the circuit courts, but some haven’t, and if it weren’t for a mostly originalist SCOTUS, the tidal wave of lawfare and partisan rulings would have paralyzed the country.  

But that is a scary position to be in, both because this court isn’t consistent, and because the next time Dems gain control, they’ll change the makeup of the court, either legally (by replacing exiting justices) or corruptly (by packing the court). 

This SCOTUS was often a useful check on Obama and Biden, overruling Biden’s EO vax mandate and his attempt to force all Americans to pay the school loans of the students who took them out, among others.  Some quick research showed me that Obama’s win-loss rate at SCOTUS was the worst of any modern president – he won only 45% of the time, compared to Reagan’s 75%, HW Bush’s 70%, Clinton’s 63% and W Bush’s 60% — until Trump’s first term, when he won around 44%.  (I couldn’t find Biden’s final number yet, but it will likely be at or near the bottom.)   

At the same time, Roberts was able to twist himself in knots to find a way to preserve Obamacare, even though his own ruling suggested that it wasn’t constitutional, and this SCOTUS has not produced automatically originalist rulings.  Also the two best justices – Thomas (my hero!) and Alito – are the oldest, and we can’t afford to have either of them replaced by a Dem president.   

To top it all off, the army of terrible partisan local judges are in some sense winning, even as they keep being beaten in court.  Because every wave of lawfare rulings gums up the works and slows Trump down, limiting the amount he can get done.  

I know: this column has been pretty heavy on the “cautious” and light on the “optimistic.”       

I would like to hear your thoughts on this subject, because I’m not sure what we should do – other than making sure that JD, Rubio or DeSantis win the WH in the next couple of presidential cycles! – to rein in our imperial judiciary.     

Hamas (and Trantifa) delenda est!

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Checks and Balances, Part 2 (posted 12/5/25)

In my previous column, I laid out why I think the Founders created our system of checks and balances, and summarized the way that system provides for each of our three branches of government – legislative, executive and judicial – to check each other’s power. 

Today I’ll start with one other aspect of our government which allows checks and balances to work.  This is federalism, the idea that the federal government shouldn’t dominate states in all ways, such that they can’t make their own individual laws to reflect the democratically expressed will of their citizens.

The check on federalism is the Supremacy Clause in article 6 of the Constitution, which says that when it comes to a fairly short, enumerated list of federal prerogatives, federal law trumps state laws that would contradict it.  For example, once the Republicans whipped the Democrats, freed their slaves, and outlawed slavery, Democrat states could no longer have state laws that allowed slavery.  

When the Dems tried two of their most famous, racist work-arounds – creating the Klan, and Jim Crow laws – both of those were eventually ended thanks to our criminal laws and the federally-enforced Supremacy Clause, respectively. 

SCOTUS justice Brandeis summarized the idea of federalism in 1932 when he said that states can become “little laboratories of democracy” in which local policies and legislation can be tried without impacting the rest of the nation.  If those experiments prove successful, the nation can adopt them on a national level, if the people agree.

Such experiments have been going on in the states non-stop for the last century and more.  Two common examples relate to crime, and to taxes and regulation. 

Regarding crime, red states generally blame criminals more than society for criminals’ actions; they support the police, and they prosecute and incarcerate criminals (especially recidivists) for longer sentences.  Blue states generally blame society more than criminals; they are more critical of police and more likely to defund or decrease their funding; they are much more generous to criminals, releasing them on no bail pending trial, prosecuting them less, and giving them shorter sentences and letting them out early if they are convicted.

Regarding taxes and regulation, blue states and cities – operating from their preference for more and stronger government oversight of most aspects of life – have aggressively regulated and taxed.  They assiduously regulate (and from our conservative perspective, micro-manage) construction and business, and they heavily tax everything from income to sales to property.

Red states have generally done less regulation and taxing.  It’s easier to build a house, and to start and run a business in a red state, and you pay a lot less – or zero – in state income tax.  (All 7 states with no income tax are red; all 8 with a top tax rate of 9% or more are blue)  

In Brandeis’ terms, the little laboratories have been doing their experiments, and the results are now in.  In blue states, crime is generally worse, cost of living is much higher, unemployment is higher, and state services are worse.  In red states, the reverse is generally true.  (Exceptions come when stats from blue cities – regarding educational, social and political dysfunction, along with higher crime and poverty – are misleadingly attributed to the red states those cities are in.  Devious politicians then dishonestly label blue city problems as red state problems.) 

National migration patterns reflect the results of those “little laboratory” experiments:  productive people are fleeing blue states like CA, IL and NY (among others) and going to red states like FL, TX and TN (among others).  This kind of “voting with your feet” is an informal, yet very powerful form of checks and balances, since it gives all states incentives to treat citizens well, and disincentives for treating them poorly.

Having now sung the praises of our system, I must turn toward some problems with it.  I would point to three ways in which I think the original separation of powers and checks and balances have eroded over the last 40-50 years or so.

First, the legislative branch has largely abdicated its proper powers in favor of personal benefits/enrichment of congressmen.  Second, the powers of the presidency have grown toward an “imperial presidency” (a term which gained prominence in the 1960s, and got a boost from an influential 1973 Arthur Schlesinger book with that name).  Third, the powers of an imperial and overweening judiciary have similarly grown. 

Legislative abdication:

I think the Founders would be rolling in their graves to realize how wrong they’d been about one thing.  They thought that given the ambition of mankind, each branch would jealously guard their own power by continually pushing back against the other 2 branches, which is how it worked at first.  (Hence “setting ambition against ambition.”)

But it turns out that in recent years, most of our congressmen/women have deteriorated into self-serving cowards, without the spine to fight and take principled stances that might cost them personally.  We used to have a bunch of individual budget bills every year, and every congress-weasel would have to vote on all of them, and each vote would piss off somebody.  (Vote for a farm bill that farmers think disfavors their interests, and you’ll have some angry Midwesterners on your hands!) That necessarily involved checks and balances: auto-makers and heavy manufacturers would be vying with farmers and white collar business for support/perks/non-interference; east coast states would be trying to get a piece of the pie for their people and industries, as Midwesterners and west coasters would for theirs.

But since congress is now full of people who don’t care about anything but getting re-elected, and getting Imhotep Pelosi-level rich on insider stock trading (!) they avoid taking any tough stances.

Instead, we’ve now devolved to the point where each year there is one huge, bloated, omnibus bill which hits the House and Senate floor a day or so before the whole thing has to be passed, or the entire government closes down.  There’s not even enough time to read it, let alone debate any part of it – which gives every puss in congress the chance to sneak in billions of dollars of pork and dirty deals, knowing that the people likely won’t ever find out about most of them.

And if they do – if some whistle-blower reveals some of the sleazy, sweetheart deals that were in the omnibus bill – the congress weasels have given themselves perfect cover: “What was I supposed to do?  We didn’t get the bill until it had to be passed or the government collapsed.  If I’d known everything that was in it, I’d have fought it, but I didn’t, and I had no choice.  It’s a rotten system, and needs to be changed!”  

Annnnnddddd…it’s never changed.  Because it serves the interests of the self-interested politicians.

The legislature has also largely abdicated its power by giving it over to bureaucratic agencies, who are supposed to limit themselves to enforcing the laws that the congress passes.  But the congress often passes laws with ambiguous and/or platitudinous instructions.  One example involved the Clean Water Act, which tightened restrictions on polluting waterways, and empowered the EPA to enforce that requirement.  Because who could oppose clean water and unpolluted waterways?

What happened next could have been predicted by people who understand humans, and the natural tendency to behave in ways that increase your power and job security.   Agencies who regulate lightly require less employees and budget, and are less powerful.  So before you could say “power corrupts,” the EPA had decided that “waterways” means every mud puddle in the country. 

I exaggerate.  A little.

But quickly enough, examples such as this popped up: you own a little piece of land in an area with patterns of seasonal rains; it might have a small dry pond on it for most of the year, which then becomes filled with water only during the rainy season.  An activist bureaucrat could then declare that such occasional water constituted a “waterway,” and thus a protected “wetland,” and claim the right to regulate the landowner into bankruptcy by forcing him to pay for onerous government inspections and “mitigation” strategies.

I’m not claiming that regulations are always or even often wrong.  But the end result should not be that unelected bureaucrats can unilaterally and functionally “write” a law, with no recourse for the people who are harmed by their self-created interpretations.  That would open the door to extreme, undemocratic abuse on the part of unelected bureaucrats.  And that’s what was often happening. 

In the 1984 Chevron vs. Natural Resources Defense Council, SCOTUS first created the principle of “Chevron deference,” which meant that a government agency’s interpretation of a law should be given deference, rather than being overseen (and checked) by the judiciary.  Fortunately, in 2024, SCOTUS corrected that mistake, overruling Chevron, and curtailing Chevron deference.   

That was not a perfect solution, because it took power away from unelected bureaucrats, only to give it to unelected judges.  No longer could an activist EPA functionary declare your mud puddle the equivalent of the Mighty Mississippi… but an activist judge could!  However, at least that judge’s decision could be checked and reversed by a higher court. 

Obviously, the best solution would be for congress to start writing fewer and clearer laws, so that these kinds of power-grabs by unelected officials would be much less common.  But to paraphrase an old saying, wish for congressional courage and competence in one hand, and defecate in the other, and see which one fills up first.

I think Learned Hand said that.  Or maybe it was Maimonides.

To summarize, the legislative branch – between shrinking from their duties to actually write and pass legislation, and deferring to federal agencies to in effect write the laws that congress only hints at in gutlessly ambiguous bills – has abdicated its mission, and its ability to check the other branches.

In Part 3, I’ll discuss the problems with the other two branches: the imperial presidency, and the imperial judiciary.   

Hamas (and Trantifa) delenda est!

A Discussion of Checks & Balances, Why they Used to Work, and Why They Seem to be Weakening, Part 1 (posted 12/1/25)

Before I get started today, I’d like to update you on what’s going on with the now-suspended Cautious Optimism Facebook page.

I’d like to do that…except that there’s not much to update you on.  I’m going to touch base with CO in the next day or two, but so far we’ve not gotten any feedback on what caused Facebook’s mysterious overlords to suspend the page.  Which makes it a little tough to figure out whether we’ll be back there or not.  I’ll post here as soon as I know anything more.

In the meantime, thanks again for all the comments and feedback!  Traffic on this page has jumped, and many of you have let us know that you’re willing to follow us to our eventual new home, and subscribed so that you can be kept in the loop.  Please continue to share the word with others you know, especially those from the CO site.

Today’s column is part one of three on the subject of checks and balances in American government.   I’ve been involved in an email exchange on this subject with an old friend of mine who is a good-hearted liberal, and it has proven to be more interesting than I had first expected.  Discussing that led me into a little bit of religion and philosophy, a consideration of some strengths of our system (and a lot that seems to be going wrong with it now), and a dusting of mockery of some people I believe are crying out to be mocked.  (Because: me!)

My lefty buddy asked me why I think the Founders created checks and balances in our government in the first place.  I’m pretty sure that he asked because he believes that Trump has been trying to wield way too much power.  (You won’t be surprised to hear that my friend has been very enthusiastic about the “No Kings” protests, for example.)  What follows is an edited version of my response to him:

I think that there is both a philosophical answer and a political answer to the question.

Philosophy first: I think the Founders created a series of checks and balances because they were geniuses, and they were steeped in the Judeo-Christian world view that (in large part) has made the West the most successful civilization in human history. 

At the heart of Christianity is the understanding that human beings are flawed and fallen; that’s why God gave us the Law in the Old Testament (to try to hem in and correct our fallen nature) and Christ in the New Testament (to do for us what we couldn’t do for ourselves, i.e. save us from our sins). 

Side bar: That conception differs radically from most other religions/world views that I’m aware of, especially the two major competitors to Judeo-Christianity now, Islam and communism/socialism.  Islam teaches that the way to paradise is by following the teachings of Muhammad: charity and good relations with other Muslims, but also spreading the faith by the sword, killing lots of infidels and gays, establishing sharia law with no allowance for a separation between mosque and state, etc. 

Marxist communism/socialism sees human nature as malleable and perfectible, and the source of all conflict as class-based and economic, which explains all the big talk about creating “the new Soviet Man” or some such, and pointing to the moment when socialism will blur into communism/nirvana when the dictatorial (socialist) government withers away into pure commune-ism. 

Of course, that can only happen when human nature has been completely changed, which Uncle Jesus and common sense tells me can and will never happen on this earth.  Hence the reason why the last century was filled with commie/socialist attempts at social re-engineering that resulted in poverty, oppression, environmental degradation and mass murder.  (Except when the socialism was heavily watered-down, half-capitalism, as in the Scandinavian countries, most of whom have now retreated from socialism, as I understand it.  They’ve still got market-suppressing over-regulation and high tax rates, but other than that…)

Now the politics:  The Founders’ understanding of Judeo-Christianity and flawed human nature led them to embrace and institute two great secular ideas with their roots in that tradition: free market capitalism, and a democratic republic (not a pure democracy, i.e. despotic mob rule) which incorporates checks and balances.

Another side bar: In a recent discussion with CO, he pointed out that “capitalism” is a derogatory term popularized by Marxists and socialists to denigrate and make a straw man out of free market economics.  I said that in debate, I try to use “free market capitalism” to stress that point, but he prefers the term “freedomism,” to more fully remove the straw-man denigration inherent in the term “capitalism.” 

For what it’s worth, Adam Smith – 18th century big brain and a hero of mine – also didn’t use the term capitalism, and preferred the phrasing, “the obvious and simple system of natural liberty.”  Am I saying that CO is smart like Adam Smith?

I’m saying we should have that conversation.

Anyway, free markets work because rather than trying to completely re-program basic human nature – as communism/socialism does – it turns the ubiquitous sin of greed toward a moral purpose.  You win in a free market by providing a good or service to another person which he is willing to voluntarily exchange money for, producing a win/win, or else the deal doesn’t happen. 

So you get what you want – whether that is out of a greedy desire, or a healthy ambition, or desire to provide for yourself and your family – by giving me what I want.  And the rising tide lifts all boats.  Hence Smith’s famous quote, “It is not from the benevolence of the butcher, the brewer or the baker that we expect our dinner, but from their regard to their own interest.”

Socialism fails, on the other hand, because it exacerbates the equally ubiquitous sin of envy.  It tells people who are less economically successful that successful people have wronged them, and fans the flames of their resentment into a falsely righteous anger and a sense of entitlement to the work and resources of others.

And before you know it, you’ve elected professional useless people like Bernie, AOC and Mamdani, and everything in states and cities they govern begins going to hell in an ever-increasing series of handbaskets.     

Checks and balances work because in addition to having good qualities – being charitable, willing to work for your bread, helping your neighbor – people are also power-hungry, greedy, lazy and all the rest.  The Founders knew that, and set up the system which Madison describes as one in which “ambition must be made to counter-act ambition.” 

Powerful senators are checked by powerful representatives, requiring them to compromise and horse-trade if they want to pass bicameral legislation.  Ambitious legislators, through the power of the purse or impeachment, can check presidents, and those presidents can check the legislature with the veto and the “bully pulpit.”  

The judicial branch checks the legislative and executive branches, and itself, as when higher courts slap down out-of-control lower courts.  (See the last 10 months!).  Those branches also check the judiciary, through passing new laws, amending the constitution or (more rarely, and more controversially and less settled) by defying SCOTUS rulings.  

Examples would be Lincoln’s suspension of habeas corpus during the Civil War, and instances when the free/Republican states defied the slave/Democrat-state-driven laws such as the Fugitive Slave Act, and SCOTUS rulings such as Dred Scott.  Such defiance is encapsulated in Andrew Jackson’s likely apocryphal comment that “[SCOTUS Chief Justice] John Marshall has made his decision; now let him enforce it.”

As potentially destabilizing as open defiance of SCOTUS rulings could be, the fact that SCOTUS has no military or legislative agency to enforce its rulings provides a sober warning to the judiciary against drastically trampling the will of the citizenry.

That’s how the system of checks and balances has traditionally worked.  But in the last sixty years or so, that system has been fraying.

Coming up in Part 2: The boost to checks and balances provided by federalism, and the erosion of checks and balances by the abdication of the legislature, and the rise of a quasi-imperial Presidency and a quasi-imperial Judiciary.     

Hamas (and Trantifa) delenda est!

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