Mitch McConnell and the Separation of Powers
“I’m going to take my cues from the president’s lawyers.” (Mitch McConnell)
On 13 January, 2019, the House Judiciary Committee voted on and approved along strict party lines two articles of impeachment against Donald John Trump.
The Founders set up our government in three distinct branches. This much we all remember from Schoolhouse Rock. The Legislative branch writes laws and appropriates money in the federal budget. The Judicial branch makes certain that those laws are in accordance with the Constitution and with legal precedent, and makes sure that everyone, the other branches of government and citizens and corporations, abides by those laws. Finally, the Executive enforces the law that has been written by the Legislative branch and interpreted by the Judicial branch.
These three branches of government are designed to provide “checks and balances.” What that means is that no one branch of government can — or should — have too much power, that no one branch of government should solely determine public policy and law. If, for example, the Legislative branch passes a law in violation of the Constitution, the Judicial branch declares the law “unconstitutional” and strikes it down, or demands revision so that it is in accord with the Constitution. Or, if the Legislative branch passes a law and then sends it to the Executive branch to sign it into law, then the Executive branch can veto the law and send it back to the Legislative branch for revision. The Executive branch can take an action — write an Executive Order or withhold money appropriated by Congress — and the Legislative branch can nullify the Order or can take legal action. Finally, if the Executive commits a crime, then the Executive can be “censured” or can be impeached, tried, and removed from office.
The United States is far from the only national government set up on this model. It is a time-tested model. For example, the Roman Republic (roughly 509–27 BCE) established a separation of powers specifically so that no one could take or hold complete power over the Republic. And, indeed, as power consolidated into the hands of fewer people, and as they used the military more and more to violently enforce the law, the Republic collapsed. Among the current governments set up on this tri-partite system are Australia, Denmark, France, India, Norway, Pakistan, and the UK. We can also learn from modern examples of what happens when any one branch holds too much power — and it is almost always the Executive branch that does so. The separation of powers dissolves. The Executive draws the legislators and the judges into his (and it has almost always been him) circle of influence. The Legislature and the Judiciary become de facto arms of the Executive. Instead of checking the power of the Executive, they reinforce it. Voilà. You’re living in a dictatorship.
Enter Mitch McConnell. He has publicly stated for three years that he will not bring any legislation to the floor for a vote if Trump does not approve. Nope. Nope. That’s not the role or function of the Legislature. The Legislature should write and pass whatever laws it deems fit and necessary. It should send those laws to the Executive for signature. It can enter into a negotiation, a back-and-forth, until it reaches a form that is amenable to both branches. But tit cannot accede to the Executive’s whim.
McConnell bragged on Fox News on 12 December that he had effectively held up for two years the judicial nominations made by Obama, and is now gleefully stacking the courts with Trump’s nominations. Many of these appointees have been deemed “unqualified” by the Bar Association. Their only qualification is that they have been Trump supporters. While this is happening at all levels of the Judiciary, none more so prominently than the negation of Merrick Garland’s nomination to the Supreme Court, and the two subsequent ideologues installed on the Supreme Court by Trump. The latest Supreme Court Justice, Brett Kavanaugh, has publicly argued in favor of more powerful Executive.
Through these actions (tying the Legislative branch to Trump’s fancy and stacking the Judicial branch with Trump supporters) McConnell is collapsing the separation of powers and consolidating them into the Executive.
And, now, Trump will be tried in the Senate (assuming the full House votes to send the Articles over to the Senate. As of 14 December, everyone expects that to also happen along party lines). McConnell has also publicly announced that he is working alongside the White House Counsel, that there will be “total coordination” with the White House, that there will be “no daylight” between himself and the President, that the Senate will support the President. McConnell is behaving as if he is a part of Trump’s defense team!
What does this say about the separation of powers? The powers that must be maintained in order for a Republic to remain vital? They are eroding, and eroding quickly. The Legislature (the House and the Senate) cannot become an arm of the Executive. They should not coordinate policy. The Judicial branch cannot be an arm of the Executive, giving the legal imprimatur to the Executive’s greed and lust for power.
Make no mistake. Trump would be a dictator if he could. He glorifies and praises dictators around the world. Mitch McConnell is enabling that power fantasy even as you read this.
Ritch Calvin is an Associate Professor of Women’s, Gender, and Sexuality Studies at SUNY Stony Brook. He is the author of Feminist Epistemology and Feminist Science Fiction and editor of a collection of essays on Gilmore Girls.
