Constitutional experts take the temperature of checks and balances
At an NYU Law Forum on October 22, former government officials and constitutional law scholars examined the current state of the American system of checks and balances designed to restrain the presidency. They paid particular attention to how political hyper-partisanship and the expansion of executive authority are challenging that system. Wherever they fell on the political spectrum, the panelists expressed serious concerns about how American politics and its delicate, complex balances are trending.
Titled “All the President’s Power: What’s Left of Checks and Balances?” and co-hosted by the Reiss Center on Law and Security, the event was moderated by Dean Emeritus Trevor Morrison, Eric M. and Laurie B. Roth Professor of Law. The panel featured Bob Bauer, professor of practice and distinguished scholar in residence and former White House counsel; Professor Gillian Metzger of Columbia Law School, former deputy assistant attorney general in the US Department of Justice’s Office of Legal Counsel; and Professor Michael McConnell of Stanford Law School, former judge on the US Court of Appeals for the Tenth Circuit.
The panelists largely agreed that presidential power across multiple administrations has increased due in large part to Congress’s failure to fulfill its constitutional role. Bauer argued that hyper-partisanship has caused Congress to “not police institutional boundaries,” leading members to prioritize their political party over defending their institutional prerogatives.
A major focus of the discussion was presidential use of impoundment, or the refusal to spend funds appropriated by Congress. Metzger said that the Trump administration’s use of impoundment represents a “different magnitude and something we really haven’t seen before.” She noted that when norms of cooperation and consultation dissipate, it becomes difficult to figure out what controls will replace them. The power of the purse, Metzger argued, is “really essential to how government operates and to preserving constraints on the executive.”
The panel expressed skepticism about the judiciary’s ability to effectively police executive overreach. McConnell noted that the famous three-part framework set forth by Justice Robert Jackson in the 1952 Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer, which evaluates presidential authority based on what authority Congress has granted, is “virtually useless” in litigation. McConnell suggested that the president invariably claims to derive authority from “some vague language and some old statute.” Additionally, judicial action is often constrained by procedural issues, including the doctrine of standing—whether a party has suffered sufficient injury to sue—and preclusion, which limits the ability of parties to challenge executive action in court under the Administrative Procedure Act.
The panelists also discussed how traditional norms regarding the Department of Justice’s independence seem to be eroding. Morrison raised concerns about presidential influence on the selection of targets for prosecution or acts such as removing a sitting US attorney to install someone willing to indict a political adversary. Bauer agreed with Morrison that the norms governing the relationship between the White House and the DOJ are being ignored and dismantled, adding that it is unlikely they will be restored just as they were before.
Watch the video:
Selected remarks from the Forum:
Bob Bauer: “Consider the point we’ve reached where the president can refuse to enforce a statute passed by Congress by large majorities and held to be constitutional on challenge by the Supreme Court, and that was the TikTok ban…. [President Trump] refused to enforce the statute. I don't know…of any parallel in modern American presidential history where a president says, ‘I’m not going to enforce the statute. I’m just not going to enforce it at all.’” (video 13:19)
Gillian Metzger: “You have these district court judges under very short time frames…writing lengthy, thoughtful opinions…. And then it goes up to the Supreme Court, and they get a stay without any explanation. There are a lot of good reasons why the Supreme Court doesn’t explain on the emergency docket. I get it. But that’s not a conducive way to have goodwill among your judiciary when they’re really putting out their ideas and trying to take this seriously and expressing their concerns and maybe feel they’re not hearing from the Court.” (video 36:29)
Michael McConnell: “This may be a heterodox opinion, but I think the special counsel statutes and later regulations were designed to give a veneer of distance where there was no distance. All you have to do is appoint a special counsel that you know hates the other side and then they give them complete independence, and all the damage is done. I actually think it’s better not to have special counsels because I think it enables [political actors] to get off the hook. I’d rather know that Donald Trump is actually ordering these terrible prosecutions, rather than have two stages of phony drapery in between.” (video 53:16)
