Checks and Balances
Amendment and Justifications
I have searched the constitution and read the applicable Federalist Papers. I have been, mostly, paying attention to the behavior of the Executive and Legislative branches of the federal government. Here are my conclusions. There is some controversy here, but this is how I call it. This is posted on the website of the CA23rd Democratic Club at https://ca23rd.org There are two companion papers presenting the results of reading the Constitution and selected papers from The Federalist Papers. Please view them.
This proposal was written after a reading of the Constitution and of some of the Federalist Papers. Please visit this web page and the linked pages before proceeding:
https://ca23rd.org/blogs/index.htm
Trump has publically declared he and his administration will stonewall all House Subpoenas. He does not acknowledge that anyone in government has any control over what he does.
Trump has declared a National Emergency regarding the border between the United States and Mexico. He plans to and/or has attempted to move funds from a purpose designated by the Legislature to another purpose.
The constitution explicitly states that the Legislative Branch has the power of the purse. They and only they have the authority to designate funds for specific purposes. The Executive Branch does not have this authority. Nor does the executive branch have the authority to withhold funds designated by Congress.
The constitution has the implicit purpose of checks and balances but does not mention them directly. For this reason we visit The Federalist Papers.
The Federalist Papers are considered a primary source. They were directly written by some of the people involved in the design of the Constitution. These papers tell us the goals of the Constitution’s architecture. They tell us of why some things were done and some things not done. They tell us of the intents that could not be written into the Constitution.
A constant theme of the Federalist Papers is one of avoiding tyranny. It specifically mentions the tyranny of the majority. Every person and every group of persons, with authority and power have a strong tendency to strive to accumulate ever more power. This is a theme repeated throughout human history, and referenced many times in these papers.
Papers 47, 48, 49, and 51 discuss the concepts of checks and balances. They repeatedly reinforce this theme of separation of powers in order to prevent too much power in one branch of government. However, they do not describe how these checks and balances might be implemented.
After those readings we can make reasonable conclusions as to what the authors of the Constitution intended, and we can make justified suggestions as to how the intent might be fulfilled.
A disclaimer: This paper does not begin to attempt to address the entirety of the current situation of the Federal Government. As long as this is, it is limited in scope to just the concept of checks and balances.
The current President does not acknowledge the possibility that anyone in the Legislature could possibly compel him to do speak with them much less to do or not do anything. For example, he has denied the possibility that the Legislature has any oversight by refusing to acknowledge and respond to subpoenas from them. It does seem to be the case that this situation is unique in history. Regardless of what might be decided, this will be new territory.
Our examination of the Constitution and the Federalist papers has revealed that the clear intent of the Constitution is for each branch to provide checks and balances over the other two. The current president outright denies this.
This situation is a true constitutional crisis. The current President has clearly violated some of the truly fundamental concepts of our Constitution. Further, since we, meaning the entire body politic, the voters of the United States, elected this person, we must now consider the possibility that we will elect someone worse them Trump. This plays a major role in my conclusions. Before the morning after the 2016 elections I was moderately certain Trump would not be elected. I was sure we could not possibly behave so badly. I was wrong.
Now we must face the facts: Trump was elected. As a result, I am worried about the future of this country. This bears repeating, I hold that everyone who thought about him, knew before the election, that he was and is totally unqualified for that office. We elected him anyway. Now we must prepare for the time when we elect someone just as bad or even worse.
We must create laws or constitution amendments that make exceedingly clear that Congress has oversight over the Executive. But we must also be clear to put limits on that oversight.
Again and again, I refer to the Federalist papers, and to external references such as Montesquieu.
The next section presents the laws I believe should be implemented.
The Senate and the House of Representatives shall each create or designate a standing joint committee with the responsibility and authority to interrogate members of the Legislative and Executive Branch to include all appointed and non-appointed officials who are members of the Federal Government. There shall be no exclusions to this authority.
Both houses of Congress should be involved in this activity. As is the current situation after the 2018 elections, the Senate is still controlled by those who support Trump. Each house must have the authority to initiate questioning of federal officials.
Side note: It seems improper to leave out the Judicial. However, they render decisions but do not implement or enforce. Their decisions are published for all to see. I suspect that the members of the Judicial have always been open to questioning.
Each political party that is represented via 20% or more of the members of their House (meaning the Senate or the House of Representatives) shall be allocated 5 seats in the committee with the intent of dividing the membership equally among the parties. Political parties with less than 20% and at least one member of the Senate or House shall have one committee member.
Repeatedly, the Federalist papers speak of the tyranny of the majority. These committees are to be filled with sufficient members of the opposition party/parties such that they can initiate a line of questioning despite the majority rule. This is a line of questioning. Not the ability to compel anyone to do anything but to answer questions. I suspect that a third party will begin to rise, maybe the Libertarian Party. Just in case the above is worded for that possibility.
The chair of the committee shall be an additional member from the House and shall be of the opposition party, thusly providing the opposition the ability to decide a vote in the event of highly politicized decisions. The opposition party is defined as the political party with the largest contingent that is not the same as the President’s party.
The law must specify a chair and how the chair is selected. Make it simple. Bear in mind the tyranny of the majority and give the minority some explicit control.
All members of the committee shall, upon nomination to the committee, have their names submitted to the appropriate agencies for clearances of the highest level. Each member must be individually approved by the clearance agency/agencies before being accepted as a member of the committee. The evaluation of the nominated members by the security agency as to allow clearances shall not be overturned. In the event the subject of the subpoena requests, each committee member may be required to agree to a specific oath in keeping records of a specific testimony classified. In this event, the hearing shall be a closed hearing with all testimony declared classified. In the event of a closed hearing, the department heads of all the appropriate security agencies, or their designated representatives, shall be invited attend for the purpose of rendering judgement as to the appropriate level of classification. The classification of the meeting records shall not be reduced without the approval of the security agency representatives. Those agents may take the step of requiring all records to be stored according to their procedures and if deemed necessary under their direct physical control. Those agents may decide amongst themselves as to which agency will undertake this responsibility. Their judgement shall not be overturned and any violation shall be treated as a national security matter.
Preclude any possibility of refusal to testify because of security clearances. Give the security agencies authority over matters of security to reduce political games. The Trump administration has notably given security clearances to several people who should not have them. This behavior is to be forbidden.
This committee has the authority to compel the testimony of all persons elected to federal positions, all appointees to federal positions, and all federal employees. The person subpoenaed shall appear on a date specified by the committee. The committee may require attendance within 10 working days of the subpoena. Exceptions may be made for foreign travel or personal emergency.
This is the core concept. Congress can force federal officials to testify. All federal officials work for the government, on behalf of the people. No federal employee is to have loyalty to any particular person in any office. This is the case now with Trump.
These proposals provide Congress with the un-deniable right to compel federal elected and appointed personnel to testify under oath. They do not provide authority to require that those persons take or stop taking any specific action. If the questioned personnel commit perjury, then a specific crime has been committed and may be dealt with as needed under existing laws.
The committee has authority open any line of questioning that might pertain to the offices holder’s ulterior motives and possible misbehavior for up to ten years before taking office, while in office, and without limit after their tenure.
Just today, as this was being written, the news included arguments by lawyers for 45, Attorney William Consovoy. In arguments to the federal appeals court, today, he claimed Congress has absolutely no authority to subpoena president or in any way to question him. An example web site carrying this news is/was here: https://www.cbsnews.com/news/trumps-lawyers-fight-house-subpoena-for-trumps-financial-records/
And to quote a paragraph from the article:
When asked by Judge Patricia Millett, an Obama appointee, whether it's the case that the committee has no power to regulate the office of the president, Consovoy responded, "The answer is yes."
Clearly Mr. Consovoy has not read and understood the constitution and the Federalist papers. Further, the way things are going now, we can expect more of the same for future Presidents. This is directly in contrast to the oft stated premise of checks and balances expressed in the Federalist papers. Therefore, laws such as have been propose here must be codified into law.
If a subpoena from the committee is not honored the committee may vote to suspend said person from office. If there is a simple majority vote by the committee to do so, the resolution is delivered to each of the Houses. Either House of Congress may support the vote by a simple majority of either the majority or the minority party, and if done the person is immediately suspended from all official duties and all security clearances are suspended pending a final resolution. In the event that the President of the United States is the subject of the subpoena the 25th amendment shall be immediately activated thereby suspending the President from all official duties with the next in line assuming immediate control. The actions outlined by the 25th amendment shall be enforced. If the chain of command extends to the Speaker of the House or any other elected official, they shall be allowed to suspend their current activity to assume the Presidency on a temporary basis, not having to resign their elected or appointed position.
The law must be excruciatingly clear that the committees have this authority. The subject of the subpoena has no option but to testify. The penalties must be immediate. Again, this is a request for testimony, not an order to behave in any specified manner other than testifying.
Some will detest the above requirements. They are to be asked the question: What should have been done with Trump and his lawyers made claims that neither he nor any in his administration were compelled to comply with any line of questioning from Congress?
The position of this amendment is, in part, since we, the body politic, the electorate, really did elect Trump, we may very well elect another person that is just as bad. Or worse, someone with sufficient savvy to truly take advantage of the office.
The committee is empowered to require sworn testimony with all the responsibilities associated. This is a political activity, is not a criminal proceeding, and the Fifth Amendment for self-incrimination shall not be allowed. No federal employee is a client or legal counselor to any other federal employee. Lawyer client privilege and executive privilege are expressly prohibited.
As this is written in the year 2019 it is clear that if Trump were called to testify, he would take any action he might think of to avoid said testimony. None of the people in government work for the person D. Trump. They all work for the people of the United States and have a legal and moral obligation to put the interests of this country ahead of all personal interests. Executive privilege is not in the Constitution. There is one exception to the above: Legal counsel specifically appointed to serve as a defendant’s counsel are provided the appropriate privileges.
If the subject of the subpoena is required to testify more than once in any quarter, or twice in any year, they may appeal to the Supreme Court. The Supreme Court will entertain this appeal within five business days of the request. The length of the testimony shall be under control of the Supreme Court. A judgement is to be rendered within five business days of conclusion of the testimony to the court.
Yes, the members of the committees may go overboard just as any committee can. They are to have the right to compel testimony once a quarter and more if need be.
The President has authority to convene Congress and to require Congress to consider selected proposed measures and to require a full and public vote by each house. This shall include presidential appointments.
The leaders of both houses of Congress have abused their powers in recent years. One person can stop a measure regardless of the support is has. The Senate has taken the position that no bill will be brought before the Senate until it has a majority of the majority.
This behavior is a clear and exact example of what the Federalist Papers refer to as the tyranny of the majority. The President cannot require Congress to vote for or against any measure, but does need the authority to require a vote and override the leadership of either house. Note that in Article 2, Section 3 of the Constitution, the President already has authority to convene Congress at will.
Last update: 24 November 2019