Balance of Cower – Beholden to Trump, Congress & SCOTUS Are Failing the Founders

While the supposedly co-equal branches of government are failing to stand up to an authoritarian president, lower courts have done an exemplary job of defending the Constitution and reminding Americans what their country is supposed to stand for.

It doesn’t take a genius to figure out that, when the Founding Fathers came up with their innovative plan of creating three co-equal branches of government and a system of checks and balances to ensure that none of them became too powerful, they were primarily concerned about a despotic president taking over one day. All of them had suffered under an autocratic monarch and knew the harms caused by tyranny.

Ultimately, though, no matter how equal the branches were designed to be, and regardless of how many checks on each other’s power they were given, at the end of the day one of them controls the guns. And, while final say on interpreting the law is the Supreme Court’s prerogative and Congress exercises the power of the purse, it is the president who oversees the military and law enforcement.

In other words, the system only works if everybody, and especially the person in the Oval Office, plays by the rules.

The remarkable thing is that it has worked for nearly 250 years — in large part because the people who have served atop the three branches have generally believed in democracy and the nation’s founding ideals.

For example, with one wartime exception, none of the first 44 presidents sought a third term (even before the 22nd amendment to the Constitution prohibited that in 1951). Furthermore, all of them left voluntarily — even when they had to hand the reins over to their political adversaries.

The one time a president turned out to be a crook, Congress stepped up to hold him to account, and even members of his own party abandoned him. And thenRichard Nixon resigned in disgrace and simply left without causing any trouble.

No wonder Americans got complacent and took their democracy for granted.

Unfortunately, they did so at the worst possible time… right when a demagogue arrived on the scene who personified the fears of the Founding Fathers.

Donald Trump is not only a man of extremely low character, but he has no regard for democracy or the rule of law. Corrupt to the core, he only seeks power and wealth for himself.

Therefore, it’s hardly surprising that he ended that 240-year streak of peaceful transfers of power when he tried to overturn the results of the 2020 election.

Even worse, when the American people inexplicably voted him back into office four years later, they also elected the most subservient Congress in history. Beholden to Trump, the GOP majority willingly gave up many of its powers because the president used his executive authority (real and imagined) to push through policies they liked.

This week, the legislative branch was called out on its abdication of duty by none other than conservative Supreme Court Justice Neil Gorsuch (who is guilty himself of granting unprecedented authority to the executive).

In a concurring opinion to the high court’s decision on Friday that Trump does not have the authority to impose tariffs on much of the world, Gorsuch notes that the Founders funneled “most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) … through the legislative process for a reason.”

Noting that legislating can be time-consuming and arduous, he points out that this is by design.

“[The] deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man,” Gorsuch wrote. “There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day.”

Very little of that is happening in today’s legislative branch. At the same time, the GOP-led Congress is conducting more oversight of a Super Bowl halftime act than of a lawless administration.

The shameful abdication of their powers by the GOP majorities in the House and Senate ended the carefully calibrated balance of power that the Founders envisioned and tilted it toward the executive branch.

But that’s not all: For the most part, the Supreme Court has also abandoned its role as a check on the president. Friday’s tariffs decision notwithstanding, its conservative supermajority has largely given him a pass for even the most egregious abuses of power.

In his concurring opinion, Gorsuch also excoriated most of his colleagues for being hypocrites — the three most extreme right-wing justices for having ruled to curb the powers of Joe Biden while wanting to give Trump a pass because he is one of them, and the three liberals for having done the opposite.

What Gorsuch, as someone who is most familiar with the inner workings of the court, made clear is that many decisions these days are not about fairly applying the Constitution but rather about the ideologies of the respective justices.

That, too, flies in the face of what the Founding Fathers wanted the judicial branch and the Supreme Court to be.

However, there is a lone bright spot: The rest of the judiciary is largely doing its job. And, since the Supreme Court does not hear many cases, the lower courts are the main bulwark against Trump’s abuses of power.

This is especially apparent when it comes to ICE’s mass detention and deportation campaign. According to an analysis of about 4,000 cases by Politico, for every district judge who ruled in the administration’s favor, 12 voted against it.

Even judges that Trump appointed are twice as likely to side with the victims of ICE than not.

And it’s not just that these judges are ruling against the administration, it is also how they are doing it. One after another condemns Trump’s actions and policies in the strongest terms, and many of them do so by quoting the Founders and reminding Americans of their nation’s founding ideals.

We hope they are paying attention.

To do our part, we selected some of the decisions that our readers should study.

For example, here is a ruling from Texas-based District Court Judge Fred Biery in the case of five-year-old Liam Conejo Ramos and his father, who were seized in Minnesota and taken to a detention center in the Lone Star State.

“Observing human behavior confirms that for some among us, the perfidious lust for unbridled power and the imposition of cruelty in its quest know no bounds and are bereft of human decency,” wrote Biery, who was appointed to the bench by President Bill Clinton. “And the rule of law be damned.”

In his ruling, the judge also accuses the administration of being ignorant of the Declaration of Independence and added that his order to release father and son symbolizes a “judicial finger in the constitutional dike.”

In West Virginia, District Court Judge Thomas Johnston, an appointee of George W. Bush, wrote about the “dystopian absurdity that could stem from the Government’s incorrect, unfounded interpretation of the law.”

He noted that the administration believes that, if a legal resident were mistakenly detained (as happens frequently), they would not be entitled to a bond hearing.

“This concession should concern everyone. A threat to anyone’s constitutional rights is a threat to us all. Today, immigrants are being detained without due process,” Johnston wrote in an order mandating the release of various individuals detained by ICE in his state. “Tomorrow, under the Government’s interpretation of the law, American citizens could be subject to the same treatment. This Court will not allow such an unraveling of the Constitution.”

Also in West Virginia, District Court Judge Joseph Goodwin, another Clinton appointee, absolutely scorched the administration for treating a law-abiding couple charged with civil violations of the country’s immigration laws like hardened criminals.

“They wear orange jumpsuits, are shackled, and are restrained in heavy chains. They have been kept away from their children, forced to languish in detention hundreds of miles away from where they live and work,” he wrote. “They have been confined for days alongside persons accused of or convicted of crimes. They are held without any custody determination or bond hearing. This is not what civil enforcement looks like in a humane system of government under law.”

Noting that “the Constitution presupposes restraint as the default of lawful authority,” Goodwin states that this is something the Trump administration is lacking.

“Without restraint, enforcement becomes arbitrary and unlawful,” he writes.

“A system confident in its authority does not need shackles and chains. A just system does not jail civil detainees for days without process and call that order,” Goodwin adds. “The Constitution was written to cover even the most difficult cases. It forbids shortcuts.”

In another decision, the judge also blasted the administration’s policy of allowing its agents to be masked.

“An anonymous government is no government at all. It cannot be held accountable. A masked agent freely uses force without justifying his actions, and the public cannot name him to challenge his conduct,” Goodwin writes, adding that a “regime of secret policing has no place in our society.”

These are far from the only cases.

In fact, we could cite countless examples of federal judges — appointed by Democrats and Republicans alike — sounding the alarm about Trump’s lawlessness, his abuses of power, and his perversion of the Constitution.

Their warnings do not just relate to immigration but also issues like the president’s use of troops in blue states or his demand that states their voter rolls with the federal government.

Here, for example, is District Court Judge Charles Breyer, who wrote last year that the “Founders designed our government to be a system of checks and balances. [The Trump administration], however, make[s] clear that the only check [it wants] is a blank one.”

Americans should start paying attention because their Constitution is at stake — and Trump’s approach to it, to the rule of law, and to any restraints placed on him by the fundamental principles of constitutional governance, is similar to his approach to women.

We’ll let the president’s own words speak for him.

“I don’t even wait. And when you’re a star they let you do it,” he once famously said. “You can do anything.”

It’s time to listen to judges across the country and make it clear to Trump that “no” means “no.”