The founders of this nation were the architects of an ingenious structure to ensure democracy and the rule of law remained the cornerstone of American self-governance. The founders’ plan was to create three equal branches of government: the legislative, executive and judicial, that regulate each other. Â
Unlike a dictatorship, where one party makes all the decisions, or a monarchy where the seat of power is retained by family lineage, a democracy uses this “separation of powers” to disburse authority and provides “checks and balances” for misconduct.
Each branch of government was designed with oversight by another branch in mind. This segmentation was implanted into our Constitution to ensure that no part of government, no party, or no person can act without oversight and accountability.
Democratic governance starts with citizens who vote for members of Congress. Congress then creates directives and legislation for the executive branch. The executive branch is charged with executing the will of Congress and ensuring the rule of law is to be followed. The judiciary evaluates the conduct of Congress and the executive branch, keeping them both in constitutional compliance. The Legislature appoints the judiciary and the executive uses the court system to make findings and to apply the rule of law.
Even if Congress and the executive collude, such action is always under review by the judiciary. In theory, all three branches must adhere to the rule of law that regulated all conduct equally.
In fact, the judiciary itself has evolved into a complex network of self-evaluation through the appellate courts and state and federal supreme courts.
So what could go wrong?
The July 1 2024, Supreme Court ruling Trump v. the United States revealed our Constitution has a glaring flaw: There is no check and balance should the U.S. Supreme Court itself render an unconstitutional ruling.
This is exactly what happened on July 1.
The Supreme Court ruled, “Under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts.”
Any idiot understands that granting “absolute immunity” to any person eliminates oversight and obliterates the rule of law, and thus a dictator could be born. Having our chief executive exempt from the very laws he or she is sworn to defend is ludicrous.
If there is no rule of law, no accountability, and no hope of recourse for misconduct, there would be no checks and thus no balance.
What if the Supreme Court also rules that Congress could enact any law even in violation of our Constitution? What if the Supreme Court continues to make improper findings that cannot be questioned or overturned?
The crisis we endure with this ruling, I believe, is the greatest attack on our system of government since our founding 250 years ago. But there several possible cures.
President Joe Biden just proposed requiring the Supreme Court to follow a code of ethics, its members having term limits of 18 years, and being held accountable for misconduct.
If passed by Congress, the Supreme Court itself for the first time will fall under a form of checks and balances, which it clearly needs and that was neglected by the Founding Fathers.
It is reported and verified that Justice Clarence Thomas has received perks and travel from wealthy conservatives, including Harland Crow, that was never reported.
When justices fail to recuse themselves from participating in cases with associates who have business before the court, there is no recourse. The Supreme Court justices currently have no codes of conduct and do not have to follow the rules that every other federal employee must follow.
The first cure is to create a mechanism for which members of the Supreme Court are accountable. Biden’s plan adequately corrects this flaw.
The second course of action is to refrain from voting for those who seek immunity and ask to be exempted from the rule of law. This includes Donald Trump, who requested an exemption from following our laws.
The final remedy is to deny supporting, abstain from contributing, and pushing back against those who wish to corrupt and endanger the Constitution itself.
If our precious democracy is to survive, our system of checks and balances and the separation of powers must be robust, upheld and enforced.
Jonathan Kraut directs a private investigations agency, is the CEO of a private security firm, is the CFO of an accredited acting conservatory, former college professor and dean, is a published author, and Democratic Party activist. His column reflects his own views and not necessarily those of The Signal or of other organizations.
