This country has experienced chaos since it was founded. It was born out of a belief that there was a form of government that could be organized out of the consent of the governed, different than a monarchy, where the peoples’ rights were not acknowledged or protected.
It took 11 years after the Declaration of Independence was signed in July of 1776 to work out the shape and structure of the new form of government, the U.S. Constitution. The document laid out the powers of three branches of government: the Executive, the Legislative, and the Judicial. It would be another two years before amendments were made to the original document, to set up what we call our Bill of Rights, which specified individual rights in its description of what the government could not do.
The Constitution is the basis of our laws, and all three branches must adhere to its statement of operations. Here is the preamble, a concise statement of what is sought:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.“
Over the years, amendments have been made to the Constitution and its Bill of Rights, amendments that seek to clarify or correct principles at work but not made explicit in the original document –- Amendment 13 (anti-slavery 1865), Amendment 14 (due process of law, equal protection under the law 1868), Amendment 15 (voting rights 1870), and Amendment 19 (women’s voting rights 1920), for example.
All three branches of government interpret the Constitution, but each has a different role to play in the functioning of our government, creating “a separation of powers.” In its simplest set of definitions, the Legislative branch makes laws (Senate and House of Representatives); the Executive branch carries out laws (President, Vice President, Cabinet); and the Judicial branch interprets laws (Supreme Court and other federal courts).
What follows is an examination of each branch, with commentary on the current state of affairs.
Legislative Branch: Back then, it took a great deal of debate and discussion to create Congress in a bicameral formation to ensure checks and balances. Article 1 of the Constitution vests certain powers in Congress. The Senate has representation that is considered equal, with two senators per state. The House of Representatives has representation that is based on population. Members of both houses are elected by the citizens of their state. Laws are enacted by voting and reconciliation of bills on both sides of the house. Something has changed in the past ten or so years: name-calling, often ugly rhetoric and posturing seem the norm, with our representatives continuously running for re-election rather than paying attention to governance and engaging in civil discourse. Nothing about this is inevitable: it is the result of choices that reflect the state of moral intelligence among us all.
Executive Branch: Article 2 of the Constitution defines the president’s powers and range. Department heads advise the president on policies. Independent agencies help execute policy, and cabinet heads (Secretaries) run departments of Agriculture, Defense, Energy, Homeland Security, Interior, Labor, Transportation, Veterans Affairs, Commerce, Education, Health & Human Services, Housing and Urban Development, Justice, State and Treasury. Over the years, the number of departments has increased as the world became more complex. When presidents have been unable to get Congress to pass legislation, they have reverted to the use of Executive Orders, providing grist for judicial deliberation. Of special note in today’s runup to the fall presidential election is the Heritage Foundation blueprint for radical modifications to the Executive Branch within the first 180 days of a Republican presidency, titled Project 2025: the Presidential Transition Project. Though President Trump claims to know little about it, the blueprint was created by the foundation which includes some of his closest advisors. Perhaps even more ominously, a key member of the Heritage Foundation team is Virginia Thomas, its former Director of Executive Branch Relations and the wife of Supreme Court Justice Clarence Thomas. Highlights of Project 2025 recommendations are laid out in a recent Washington Post article:
Remake the federal workforce to be political.
Cut the Education Department.
Give Trump power to investigate his opponents, moving the Justice Department, and all of its law enforcement arms like the FBI, directly under presidential control.
Make reproductive care harder to get.
Crack down on even legal immigration and deport millions.
Slash climate change protections.
Ban transgender people from the military and consider reinstating the draft.
You can read the entire 900-page document here.
The current administration has its own set of problems right now, with calls for President Biden to pass the torch to a new Democratic candidate before the fall election.
Judicial Branch: Only the Supreme Court was created in the Constitution. It was Congress who deemed the lower courts necessary and established them. In general, the courts rule on the meaning of laws, how laws are applied, and whether or not the laws violate the Constitution. Cases move from the lower courts upon appeal, and a very few reach the Supreme Court bench of nine judges who have been appointed for life by presidents and voted in by the legislative branch. At the present time, six of the nine judges are conservatives and three are liberals. Of the six conservative judges, three were appointed by former President Trump during his term in office, part of a plan to undo certain fixed laws like Roe v. Wade. The decisions made by the Supreme Court in the last several years have undone certain rights assumed to be present from past court rulings or have cut the teeth out of other laws that cover areas such as voting rights. Most troubling is a pattern of behavior by two of the justices (Alito and Thomas) where they do not recuse themselves from hearing and ruling on cases where they have a vested personal interest. Though the lower courts have robust codes of ethics, the only recently constructed Supreme Court code written by Chief Justice Roberts is feckless and inconsequential. The legislative branch appears to be prepared to press articles of impeachment against those two judges. If they were removed and replaced with more moderate appointees, the balance of the court might be restored. Chief Justice Roberts does not escape here unscathed, as he is the author of the decision that a president has immunity on official acts, but not on unofficial acts. Some say he has rewritten the Constitution with this decision, but it does point to how easy it would be to implement Project 2025 if former President Trump wins the election this fall.
The authors of the Constitution wanted to ensure “checks and balances” on these three branches of government to prevent the concentration of power in any one branch and to ensure the rights of citizens. Here’s how it works: the president nominates the judiciary and can veto Congress’ bills; Congress can over-ride the president’s veto with a two-thirds majority and can also impeach the president and the judges; and on a Constitutional issue, the Supreme Court can be overridden by the rarely utilized constitutional amendment process or by a new ruling of the court.
As we go into the fall elections, it’s essential to maintain a high-level view of each of the branches of government, and to pay close attention to how they are interacting. Understanding the role of each of the branches in making our government work can help sort out decisions you will be making with your ballot. Your ballot is the single most powerful tool you have to ensure that you are represented.
As ASA moves into its sixteenth year of operation, we continue to work on issues related to government and private sector policies, especially those involving ethics and operational risk. For many of us, last evening’s terrible assassination attempt on former President Trump triggered memories in our lifetime that never fade—the assassinations of President Kennedy, Dr. Martin Luther King, and Bobby Kennedy, all forms of deadly political violence. We need desperately to turn down the ghastly rhetoric, the conspiracy theories, and the sinister suggestions that someone is coming to get us. We need an honest conversation about the future of this country.
We need everyone eligible to exercise the most fundamental right they have, the right to vote.
Originally Published in ASA News & Notes July 15, 2024
Annie Searle
Searle is an Associate Teaching Professor Emeritus at the University of Washington. She is founder and principal of ASA Risk Consultants, a Seattle-based advisory firm. She spent 10 years at Washington Mutual Bank, most of them as a senior executive. Annie is a member of the CISA 10 Regional Infrastructure Security Group. She was an inaugural inductee in 2011 into the Hall of Fame for the International Network of Women in Homeland Security and Emergency Management. She writes a column monthly for ASA News & Notes and is the author of several books or book chapters. She is also a member of the emeritus board of directors for the Seattle Public Library Foundation.