Will Our Institutions Keep The Executive In Check?

"Came across these kitschy babushka made for the Trump visit to Russia."

Photo by Jørgen Håland on Unsplash.

President Trump has constantly found ways to test rules that rightfully limit the powers of the executive branch. So far, the surprising strength of a 231-year-old document has kept him in check.

In February, the U.S. Circuit Court of Appeals in Richmond Virginia found Trump’s travel ban to Muslim countries unconstitutional, on the grounds of religious discrimination. This led to a Supreme Court case that called back the ruling. Although it was found constitutional by conservative judges, it shows that there is a way to check the actions he pursues and, more importantly, bring attention to the actions he takes as president.

The legislature has stopped the president from pursuing legislation regarding criminal justice reform, funding for his campaign-promised boarder wall, and the full repeal of the Affordable Care Act. After a tough loss for Republicans in the House following the midterm elections, and 2020 just around the corner, Mitch McConnell is set on passing legislation that pleases the Republican Party, not just Trump’s agenda.

Most recently, the appointment of an attorney general, not confirmed by the Senate, is on the grounds to be ruled unconstitutional.

When Trump asked for the resignation of Jeff Sessions a long feud within the administration had come to a close. Sessions served a full two years, being appointed by Trump after his inauguration. Strategically, Trump asked for Sessions resignation following the midterm elections, with Republicans holding the Senate who would, most likely, not challenge his appointment of Matthew Whitaker to that position. 

Sessions removal was inevitable. Trump had constantly tweeted his disapproval of Sessions since he recused himself from the Mueller Investigation. With Mueller still investigating Trump and House Democrats promising to investigate the president, Trumps only hope was to appoint an attorney general that would be loyal to his agenda. The perfect man for that job was Whitaker.

With Mueller still investigating Trump’s ties to Russia, the president hopes by appointing an attorney general who doesn’t have to recuse themselves from Mueller’s investigation will allow them to interfere with it. Whitaker has opposed the investigation, saying it’s gone too far, and that Mueller’s power should be limited.

The argument has been made by conservative legal scholar John Yoo that the appointment is unconstitutional, because Whitaker isn’t a Senate confirmed official. Time will tell whether our institutions will hold up against this authoritarian move.

Whittaker has been in office for three weeks, without getting the proper confirmed by the Senate. Trump used the excuse that he’s a “temporary replacement” that doesn’t need Senate confirmation. 

Trump is citing the Federal Vacancies Reform Act of 1998 as his means for appointment. Some legal scholars are saying that the power should fall on Rod Rosenstein, acting deputy attorney general, if citing this act. Three Senate Democrats filed a lawsuit against the decision, saying there are an adequate amount of people to fill the position that could be confirmed by the Senate.

Appointing Matthew Whitaker not only tests the Constitution, but our institutions as a whole. Authoritarianism is not as fun as the president makes it out to be. Supporting a president that constantly tests the grey areas of our constitution shouldn’t be labeled as partisan hackery, but as preserving our American democracy.


Andrew Lenzo is the editor for opinions at the Eastern Echo.


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