There Are No Checks and Balances — Only Norms

(1). I grew up believing that our federal government was a system of checks and balances. Three equal branches of government, each with safeguards firmly in place. Separation of powers. A federalist system to provide autonomy to states backed by the 10th Amendment. Measures upon measures put in place by the founding fathers to protect against absolute power. It’s why we left England in the first place. 

(2).  I was wrong.

(3). We don’t have a system of checks and balances. We have a system of norms. Norms that, up until now, everyone has pretty much adhered to. But that’s all they are. Norms. A social contract. There’s no teeth to the system of checks and balances. It just requires everyone agreeing to live by a set of rules.

(4). The courts can order the executive branch to do or not do something. But it takes law enforcement or the military to actually enforce it. The reason why it seems like the courts have power is because the federal agencies, and even the White House, have always adhered to those norms.

(5). Congress can order the executive branch to do or not do something. But it takes law enforcement or the military to enforce it. The executive branch controls federal law enforcement. The executive branch controls the military. Congress only has any power if the FBI or the army listens to them. That’s a norm — one that can be ignored. Historically, DOJ and the military have had a good deal of independence, but not now. 

(6). There’s a reason Trump wanted to appoint people like Pete Hegseth as the Secretary of Defense, Tulsi Gabbard as the head of National Intelligence and Kash Patel as the head of the FBI. He wanted to know that if he told them to ignore Congress or the courts or their own agency lawyers, they would listen. 

(7). Even the nomination of Matt Gaetz as Attorney General was not a sacrificial lamb for the Senate to reject or a favor to a political ally. Trump knew that Gaetz would literally do anything he asked, no matter how illegal. 

(8). There was just a major security breach where the editor of a magazine was accidentally cc’d on a text thread on Signal, a civilian texting platform, about military action against the Houthis. DoD and the White House have blown it off. Which means likely there are no consequences to the intelligence failure, no matter how incredibly stupid and dangerous it might have been for US troops. Congress can complain all they want (and the GOP won’t anyway). So what?

(9). Judge James E. Boasberg of the Federal District Court of Washington DC ordered that military flights deporting illegal migrants to El Salvador be halted and that information about the passengers be disclosed. The executive branch has simply refused. There’s nothing Judge Boasberg can actually do about it. What’s he going to do? Send the bailiff into the White House to make arrests?

(10). Chief Justice John Roberts issued a rebuke of Trump’s call to impeach judges who disagree with him. To what end? If the Justice Department won’t enforce the courts’ will, Roberts is powerless. A robe and a gavel mean nothing without force behind it. 

(11). Congress right now is controlled by the GOP in both chambers. The entire party is petrified of Trump because all of the power on both sides exists at the extremes who actually bother to vote in primaries (look at what happened to Schumer for trying to put the country first). But should the House change control in 2026, it is likely that Congressional inquiries into the executive branch will soon follow. There is no reason to believe this executive branch will do anything to comply. What’s the House Judiciary Committee going to do about it? And what happens if the two parties somehow unite and pass legislation Trump dislikes and they then override his veto? How are they going to ensure their law actually is followed? They can’t. 

(12). It applies to the states too. New York’s legislature enacted a system of congestion pricing to enter parts of Manhattan. Congestion pricing required one form of federal approval, which it received from the US Department of Transportation in 2023. Trump does not like congestion pricing and is now using his power to try to force New York’s governor, Kathy Hochul, to revoke it. That is not a federalist system. Congestion pricing is a local issue. States are supposed to be able to enact and enforce local laws without the risk of losing federal funding for unrelated issues. 

(13). Add to that Trump’s hollowing out of the executive branch to purge anyone who might disagree with him and the odds of anyone even trying to enforce the rule of law are de minimis. The same is true in intimidating and bullying law firms and companies into not opposing any Trump policies, as we just saw with Paul Weiss. The end result is ultimately no one left to protest. 

(14). On top of that, Trump effectively controls Twitter via Musk. The reason Trump is suggesting a federal role in Tik Tok (or at least having one of his allies own it) is to be able to assert the same type of control there — ironically the same underlying reason why Congress ordered the divestiture of Tik Tok from Bytedance (and therefore the Chinese government) in the first place. And threats of antitrust prosecution and loss of federal contracts are enough to keep the other major platforms in line (even Amazon, controlled by the second richest person in the world, when its owner Jeff Bezos refused to issue a presidential endorsement out of his newspaper, the Washington Post, out of fear of offending Trump). Control of the FCC and the FTC (along with the SEC and every other agency) helps keep most of the other media platforms in line (as we already saw in ABC’s settlement with Trump). 

(15). It turns out, there are no checks and balances. There are no safeguards. No separation of powers. Our system is far more tenuous than that. There was simply, up until now, a shared bipartisan willingness to adhere to the underlying democratic norms of our society. 

(16). It appears that if the Executive Branch simply refuses to adhere to those norms, if the Attorney General and Secretary of Defense and their staffers choose not to enforce the will of Congress or the courts, there’s not much the other two branches or the states can do about it. The one exception is if individual employees in those agencies try to act anyway but it would require an overwhelming number of them to succeed and it would require members of our own military and law enforcement defying explicit orders from the chain of command. 

(17). Knowingly or not, our country very much chose this path last November. Say what you want about Trump, but there’s no bait and switch. He was abundantly clear about his plans throughout the campaign. If you didn’t think he was serious, that’s your fault.

(18). This could all still end up just as a series of one off examples that are defiant and norm-resistant but ultimately not that important. I hope so. What happens to illegal migrants who commit felonies is not a major concern to most people. But DOGE staffers having access to everyone’s tax returns? People here legally who did not commit any crimes being detained because of their views? States and cities told that their local autonomy and power of law no longer applies? Anyone disagreeing with the administration now risking federal arrest and detainment? 

(19). Ultimately, the logical conclusion of all of this ends with a declaration of martial law and no elections in 2028. Is that likely to happen? Probably not. But it went from the plot of a bad Netflix movie to an actual possibility in the last few months.

(20). And I genuinely don’t know what we do about it. It’s not like Democratic governors or mayors can order the National Guard or their police departments to invade Washington (although Trump did a version of just that on January 6). That would just result in a civil war. 

(21). And maybe those are our two ultimate choices: civil war or authoritarian rule. Hopefully not. Hopefully Trump goes peacefully on January 20, 2029. Hopefully the courts and legislatures aren’t completely powerless between now and then. Hopefully Trump changes course and starts adhering to the same norms that every President since Washington has adhered to.¹ But based on what we’ve seen the past two months, what reason does anyone have to actually believe this? 

(22). To be clear, I am not a Democrat. I am not a progressive. I dislike both parties intensely. Anyone who reads my writing or listens to my podcast knows I’m not an alarmist and I’m not an extremist. Furthermore, I don’t really care what happens to Venezuelan migrants who are here illegally and committing crimes. I don’t watch PBS or listen to NPR. I have no affinity for the culture of illiberalism and intolerance that emerged from DEI. I hate the protestors at Columbia who effectively believe that Jews like me should not even exist. But still, the only reason I have rights — the only reason any of us have any rights — is because everyone does. Or at least they did. 

(23). Am I overreacting? I sure as hell hope so. But I’m not sure how to look at the last two months and conclude anything else.

1. There is some question about Andrew Jackson in the case of Worcester vs. Georgia in 1832 but even in that case, which led to Jackson issuing an order declaring South Carolina’s secession to be unconstitutional, Jackson sought power from Congress requesting the right to use military power to put down the insurrection. Furthermore, Jackson worked out a deal with the Governor of Georgia to enforce the Court’s ruling, even though he disagreed with it personally