Editorials

Why constitutional checks and balances are more crucial than ever

High school students protest President-elect Donald Trump outside the U.S. Supreme Court building in Washington on Nov. 15. It’s essential that Congress and federal courts do their constitutional duty under our checks and balances system.
High school students protest President-elect Donald Trump outside the U.S. Supreme Court building in Washington on Nov. 15. It’s essential that Congress and federal courts do their constitutional duty under our checks and balances system. The Associated Press

On Monday, the 538 members of the Electoral College will fulfill their constitutional responsibilities and ratify the presidential election result. There will be protests and more drama than usual, but without an unprecedented and shocking rebellion, Donald Trump will be America’s 45th president.

Now – and in the days and months after Trump is inaugurated on Jan. 20 – Congress and the courts must do their constitutional duty as well.

As the presidency becomes more powerful, it becomes more essential that our system of checks and balances works to protect the republic. With a president-elect who blithely crosses long-established lines and who styles himself a strongman, it’s even more important that the legislative and judicial branches closely watch the executive branch – and block it if necessary.

Federal judges likely will be inundated with cases as the Trump administration and the Republican Congress seek to overturn policies and laws from the Obama years, and Democrats and advocacy groups push back. It won’t just be the obvious issues of immigration, Obamacare and climate change; it will also be criminal justice reform, women’s rights, voting rights, worker protections and much more.

While California officials can resist – as legislative leaders have vowed on immigration and Gov. Jerry Brown has on climate change – they can only do so much against the power of the federal government.

Many Americans voted for change. But if the changes go too far, the courts must protect individual rights and fundamental freedoms, even unpopular ones such as burning the flag. Federal judges are given lifetime appointments to shield them from political influence and retribution, but they still will need the courage to stand up to the president.

That is even more the case for Congress, where lawmakers have to answer to voters.

Their work starts with confirmation hearings for Trump’s Cabinet choices. Several are questionable at best due to lack of qualifications or conflicts, or because their record suggests they would dismantle the very departments they want to lead.

Senators should ask tough questions of nominees; it’s encouraging that some Republicans, as well as Democrats, are already doing so. And while the president deserves some deference, lawmakers shouldn’t shy from just saying no.

Checking Trump will be more difficult in foreign policy, where as commander in chief he has far more leeway. But Congress can still use the power of the purse to rein in dangerous misadventures abroad.

Protecting our democracy will require putting partisanship aside. Democrats in Congress – including veteran Sen. Dianne Feinstein and new Sen. Kamala Harris of California – pledge to fight any excesses by Trump.

But Republicans, including House Majority Leader Kevin McCarthy of Bakersfield and House Intelligence Committee Chairman Devin Nunes of Visalia, are in power. Republicans were happy to investigate the Obama administration for any alleged misdeed. Their vigilance shouldn’t suddenly disappear now.

At the extreme, Congress may even have to weigh impeachment to uphold the Constitution and rule of law.

Everyone should hope it doesn’t come to that. But if Trump tries to use the presidency for personal gain or acts on his authoritarian tendencies, lawmakers may have no other choice.

It is extremely worrisome that Trump continues to deny the reality that unless he takes sweeping steps, his business empire inevitably will conflict with his presidential duties. Some ethics lawyers say that his global business dealings could easily violate the Emoluments Clause of the Constitution, which bars government officials from receiving gifts from foreign governments.

Trump delayed until January a major news conference he was supposed to hold last Thursday to detail his plans to separate Trump Inc. from the White House. What he has proposed so far isn’t nearly enough. It falls short of what his own Cabinet nominees must do under federal conflict-of-interest laws.

Ending some overseas deals and a pledge not to do any new deals while in office doesn’t solve the problem. Neither does turning over day-to-day operations of the Trump Organization to his adult children, especially if they have as big a role in his administration as they have had in the transition. They helped pick his Cabinet nominees and attended meetings, including the one last week with Silicon Valley executives.

Even if Trump is not running his companies, he will still know where his financial interests lie, who his partners are and how they might be helped or hurt by his domestic and foreign policy choices. But Americans have no clue because he won’t release his tax returns and because so much information about his companies is secret. Any holdings in Russia are particularly alarming given his inner circle and his friendliness with Vladimir Putin.

So every decision he makes will be suspect. Already, while he claims to have sold all his stocks, his tweets mentioning specific companies have moved the markets, conceivably creating huge windfalls for business partners or those with inside knowledge.

When he’s in the Oval Office, the potential for conflict will only get worse – and it could put his presidency at risk. The only workable solution is for him to divest all his assets and put them in a truly blind trust.

On this and so much else, Trump seems to believe he can make up his own rules as he goes along and get away with it.

Yet our democracy is much bigger than any one man, even the president. If called upon, Congress and the courts must protect it.

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