Malcolm Rivera
The United States Constitution is the foundation of the country's legal system, outlining the powers and responsibilities of the government. However, questions and controversies have arisen regarding the scope and limits of the Constitution, particularly in relation to the president's powers. For instance, debates have occurred over whether a sitting president can be criminally prosecuted or subpoenaed, or if they can pardon anyone for any reason at any time, even themselves. These discussions highlight potential gaps or ambiguities in the interpretation and application of the Constitution, bringing into question the system of checks and balances intended to prevent the concentration of power.
| Characteristics | Values |
|---|---|
| Polarized parties | Members of a party are more likely to act in the service of their party, such as defending an overreaching president |
| Unified parties | When the president and the majority of the House and Senate come from the same party, those branches are more likely to act in tandem than in opposition |
| Congress's watchdog role | If Congress abdicates its role of overseeing the executive branch, there are few checks available |
| Supreme Court orders | It is unclear what happens if a president ignores a Supreme Court order |
| Impeachment | The Constitution provides for the impeachment of a president by the House of Representatives, followed by a judgment of conviction from the Senate with a two-thirds majority |
| Criminal prosecution of a sitting president | Scholars disagree on whether the Constitution permits criminal prosecution of a sitting president |
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What You'll Learn
Polarization and unified parties
Polarization in politics refers to the growing divide and conflict between two major groups in a society or political system. In the context of democratic systems of government, polarization is often discussed in relation to political parties, specifically in two-party systems such as the Republican Party and the Democratic Party in the United States.
In recent years, the United States has witnessed a significant increase in political polarization, with the two main parties moving away from the centre and towards more extreme views and policies. This has resulted in a growing gap and ideological divide between Republicans and Democrats, known as partisan polarization. This partisan polarization is characterized by little to no ideological overlap between the parties, with conflict centred around a broad ideological divide. As a result, party members develop negative or distrustful feelings towards the other party, making productive conversations and collaboration across political divides challenging.
The consequences of this polarization are far-reaching. It leads to legislative gridlock, with Congress struggling to fulfil its constitutional role of policymaking and oversight. The increasing polarization of Congress hardens the current levels of partisan warfare, resulting in a Congress that is perpetually gridlocked and unable to effectively share the reins of control. This raises questions about the constitutionality and wisdom of an increasingly president-centered regulatory state.
Furthermore, the demonization of opposing political parties by candidates and the media contributes to affective polarization, where one group is perceived as a threat. This can lead to political violence and support for authoritarianism. Additionally, political polarization is influenced by and fuels social and economic divisions, such as income inequality and differing views on racial equality.
However, it is important to note that political polarization is not unique to the United States. It is a phenomenon observed in other countries as well, and it can have both positive and negative impacts on democracy. On the one hand, polarization can simplify politics, making it easier for voters to understand the choices available to them. On the other hand, it can also lead to a breakdown in cooperation and compromise, hindering the ability to address complex issues that require nuanced solutions.
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Congress's watchdog role
Congress, as the legislative branch, has the power to appropriate funds, enact laws, raise and support armies, provide for a navy, declare war, and impeach and remove civil officers, including the President and Vice President. To responsibly exercise these powers, Congress must oversee the executive branch, review its activities, and investigate its administration. This includes examining how taxpayer dollars are spent, how programs are administered, and whether officials are complying with the law and legislative intent.
For example, in the 1980s, Congress used its oversight powers to narrow the regulatory discretion of the U.S. Environmental Protection Agency (EPA) by setting detailed criteria to limit EPA rulemaking. This demonstrates how Congress can influence and control the executive branch to ensure it acts within the boundaries set by legislation.
The U.S. Government Accountability Office (GAO), an independent, non-partisan agency, supports Congress in its watchdog role. GAO provides objective, fact-based information on how taxpayer dollars are spent, helping Congress identify areas for improvement and ensure accountability in federal government operations. For instance, in fiscal year 2024, GAO identified $67.5 billion in financial benefits for the federal government, demonstrating the significant impact of its work.
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Presidential prosecution
The prosecution of a sitting president is a complex issue that involves legal and constitutional considerations. While the Constitution does not explicitly address presidential immunity, the interpretation of its principles has evolved over time, giving rise to differing views on whether a sitting president can be prosecuted.
Legal scholars and experts, such as Professor Saikrishna B. Prakash, argue that the Constitution does not grant sitting presidents immunity from prosecution and civil suits. However, the Department of Justice and the Office of Legal Counsel (OLC) hold a different view. They believe that indicting, prosecuting, and punishing a sitting president would effectively incapacitate the executive branch, which they consider unconstitutional. As a result, no federal prosecutor can initiate criminal charges against a sitting president.
The Supreme Court has never explicitly ruled on the matter of a sitting president's immunity, as no criminal charges have ever been filed against one. However, in the case of Trump v. United States, the Court addressed the principles of presidential immunity for a former president, Trump, holding that former presidents are entitled to absolute immunity from criminal prosecution for actions within their constitutional authority while in office. The Court also rejected the argument that impeachment is a prerequisite for criminal prosecution, stating that it lacked support in the Constitution's text and structure.
Despite the lack of a clear constitutional mandate, the consensus among the executive branch and the OLC is that sitting presidents cannot be prosecuted. This interpretation is based on the belief that criminal proceedings would hinder the president's ability to carry out their duties. As a result, the only legal avenues to remove a sitting president are impeachment or the 25th Amendment, which addresses presidential incapacity.
The issue of presidential prosecution remains a contentious topic, with legal scholars and government branches interpreting the Constitution differently. While the Supreme Court has provided some clarity on the immunity of former presidents, the question of whether a sitting president can be prosecuted remains unresolved, leaving room for ongoing debate and discussion.
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Impeachment
The impeachment process serves as a check and balance on the executive branch, ensuring accountability for misconduct or wrongdoing. It is a formal procedure that begins with a resolution adopted by the full House of Representatives, which may be requested by a member of the House or non-members such as a special prosecutor, the president, or a state legislature. The resolution is then referred to the House Committee on Rules and the Judiciary Committee, which determines whether grounds for impeachment exist. If the House votes to impeach, "managers" are selected to present the case to the Senate.
The impeachment process includes the presentation of charges, evidence, and witnesses, resembling a trial. The chief justice of the United States presides over presidential impeachment trials, ensuring a fair and impartial process. The penalty for an impeached official upon conviction is removal from office, and in some cases, disqualification from holding public offices in the future. It is important to note that impeachment proceedings are remedial rather than punitive, meaning that a party may still be subject to criminal or civil trial and prosecution after removal from office.
The Framers of the Constitution debated various aspects of impeachment during the Constitutional Convention, including the venue, process, grounds for impeachment, and the likelihood of conviction. The inclusion of impeachment in the Constitution demonstrates the importance of accountability and checks and balances in the US political system.
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Supreme Court orders
When one part of the constitution is ignored, it can have significant implications for the balance of powers and judicial enforcement. This was evident in the case of the Trump administration, which raised constitutional questions and prompted discussions about the role of the Supreme Court in enforcing rulings.
The Supreme Court plays a crucial role in interpreting and enforcing the Constitution. When a part of the Constitution is ignored, it can issue orders to uphold the rule of law. In the case of the Trump administration, the Supreme Court had to intervene when then-President Richard Nixon defied a court order during the Watergate investigation. The Supreme Court ruled that Nixon had to turn over White House tape recordings, demonstrating its power to enforce its rulings.
The Supreme Court's decisions can have far-reaching consequences, and its rulings are meant to be the final word on legal matters. However, as seen in the case of the Trump administration, the executive branch may sometimes openly flout the federal judiciary, raising profound constitutional questions about the separation of powers.
In such scenarios, the Supreme Court's authority to enforce its rulings is tested. While sending someone to jail for contempt of court is an option, it is considered a last resort. Judges have the power to hold government entities or officials in contempt, but they may also refer the matter to the appropriate department for further investigation or legal action, as was the case with the Washington, D.C., jail and potential civil rights violations.
Ultimately, the Supreme Court's orders are meant to uphold the Constitution and ensure that no single branch of government exceeds its authority. When one part of the Constitution is ignored, the Supreme Court's rulings serve as a check and balance, ensuring that the principles enshrined in the Constitution are respected and followed.
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Frequently asked questions
This question has been brought to light by the Russia investigation, which has exposed apparent gaps in the Constitution. Scholars disagree about whether the Constitution permits the criminal prosecution of a sitting president.
This is a highly controversial question. While some argue that a president cannot be subpoenaed or indicted while in office, others claim that the balance of arguments tilts slightly against that proposition.
When Congress and the president come from the same political party, they are more likely to act in tandem than in opposition. This can lead to a situation where the president's power is unchecked, as Congress is not fulfilling its duty to oversee and hold the executive branch accountable.
There are a few potential remedies. One option is to elect the president by national popular vote, which may reduce the likelihood of highly polarized parties. Another solution is for political leaders to propose programs that encourage voters to move away from their polarized positions.
