Much of Washington spent the past week awaiting a new federal indictment of ex-President Trump. This was thought to be the big one: criminal charges for his role in the attack on the U.S. Capitol on January 6, 2021, the climax of his bid to overturn his election defeat.
The indictment didn’t come, at least not yet; but other news stories at home and abroad played on a big theme of democracy—the question of who holds which power. Who decides?
In Differ We Must, Lincoln faces such a question. Early in the Civil War he suspended the writ of habeas corpus, allowing the army to arrest suspected rebels without bringing them to court. The chief justice of the Supreme Court said only Congress could suspend the writ. Lincoln decided he could. Such was the tension between branches of government in 1861; and we can see versions of that tension in multiple democracies in 2023.
Israeli prime minister Benjamin Netanyahu was on Morning Edition this past week, defending his government’s decision to clip the powers of Israel’s Supreme Court. His coalition in the Knesset passed one of several proposed changes, banning the Supreme Court from blocking government acts that it judges to be “unreasonable.”
This and other proposed changes have prompted half a year of street protests by citizens who warn their democracy is at risk. In Israel, the legislative and executive “branches” are one and the same—the parliament names the prime minister, who leads both legislature and government. Netanyahu was weakening the one branch independent of his power. Many Israelis find this so disturbing that thousands of army reservists have vowed not to show up for their regular training.
In the NPR interview, Netanyahu called it a “minor” change (though the Court recently used the “reasonable” standard to block him from appointing a convicted tax felon to a high government post, which he now says he “expects” to do). He also asserted that he was standing up for a principle of democracy: majority rule.
“Part of my concern on the Supreme Court is that it has nullified… the will of the majority on many things,” he said.
As Netanyahu understood, democracy does not mean only majority rule; his current parliamentary majority shouldn’t be able to do just anything. Amid the protests, he dropped a proposal that would allow a simple majority in the Knesset to overrule Supreme Court decisions. He insists the Supreme Court still has ways to block the Knesset, and also maintains his right-wing government will not interfere with citizens’ civil rights.
But Netanyahu’s coalition is pressing for a further change in law that would give his governing majority more say over who the judges are. His critics fear the government turning two branches of government into one.
The question of who decides is also part of the U.S. presidential election. Former President Trump has vowed that if elected he will shred the so-called “deep state,” unelected bureaucrats who allegedly conspired against him during his term in office. If elected, he’s said to be ready to reclassify the status of many civil servants so he can more easily fire them.
Trump is merging his own stated desire for retribution with a longstanding conservative cause. Some conservatives oppose what they call “the administrative state”—federal agencies and commissions that, through acts of Congress or by custom, operate with some independence from the president.
If Trump wants to rein in the agencies for alleged disloyalty—and it’s lost on nobody that one such agency is the Department of Justice that is prosecuting him—many conservatives dislike “the administrative state” because it promulgates regulations.
A traditional understanding of commissions like the SEC, or regulators like the EPA, is that Congress delegated certain powers to them; the president signed off on the legislation; and the president typically appoints the heads of the agencies in question. It’s all within the three branches of government. But to many conservatives these agencues form a “fourth branch of government” that has grown beyond democratic control.
To rein in such agencies, conservatives developed “the major questions doctrine,” a legal concept that regulators are limited in what they can do without the explicit permission of Congress.
In a recent Supreme Court ruling, Justice Amy Coney Barrett denied the doctrine was such a big deal. She said it was simply a way to read the statutes that Congress passed.
But in that same case, Chief Justice John Roberts referred to both the major questions doctrine and the administrative state while striking down President Biden's student loan forgiveness. Congress passed a law saying that the Education Department could “waive or modify” the terms of the loans. President Biden said his administration did that. Roberts said the administration modified too much.
A more immediate question of “who decides?” is apparent in a looming government shutdown. The House and Senate must agree on federal appropriations bills by September 30 or much of the federal government can’t operate. But a few House Republicans have inserted so-called “poison pill” amendments involving abortion, LGBTQ issues, and other matters. As we heard this week from my colleague Susan Davis, some Republicans say they’re willing to risk a shutdown in hopes that the Senate and President Biden “cave” to their demands.
By custom the two houses of Congress and the president would normally negotiate, meet somewhere in the middle, pass their bills and move on. But some members of the House Freedom Caucus contend that their views should prevail over all others. We’ll find out around September 30 who turns out to be right.
In high school civics I was taught that “democracy” meant “majority rule,” but also that minority rights must be respected. The opposite is also true—minorities have rights, but must not impose their will on the majority.
Another vital part of democracy is that no one person or party ever has all the power—and whoever has some power should eventually be replaced.
All of these democratic principles are nuanced and up for debate. In observing this debate I’ve noticed one consistent pattern. Some people tend to favor the power of whichever part of the government machinery their party currently controls.