Checks and Balances

Checks and Balances

Dear Fellow Marylanders,

The United States of America is not a monarchy. From the very first days of our nation's founding, we established institutions and procedures designed to keep any one leader from absolute power.

Perhaps James Madison described it best in the Federalist 51 that "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government, which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

The Federalist Papers were a series of essays written by Madison, Alexander Hamilton and John Jay in 1787 and 1788 to help explain the intent and purpose of the new government that was about to be agreed upon through the Constitution of the United States of America.

In Federalist 51, titled "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments," Madison outlined the Founding Fathers' rationale for how and why our three co-equal branches of government - legislative, executive and judiciary - would provide checks and balances on each other for the good of our country and to ensure no one person - or branch - could become too powerful.

After 58 years in elected office, I understand more than most that elections have consequences. Presidents usually are given reasonable leeway to bring into the government qualified individuals who can serve and carry out their priorities. However, the checks and balances remain.

The president makes nominations for judges and other positions and the Senate can accept or reject them. Congress makes laws and the president may veto them. The Supreme Court reviews laws and can determine them to be unconstitutional, but Congress can pass amendments and laws to overturn court decisions. And it is the president who nominates justices for the Senate to confirm. Another important check is that the president can use their authority to defend our nation but Congress holds the authority to declare war.

As the president-elect begins to name men and women he would like to serve in the most senior positions of government, agencies that collectively affect the lives of every single person in this country, I urge my colleagues not to abandon Congress' constitutional duties or its role as a co-equal branch of government.

Regretfully, by deciding that a president has absolute immunity for official actions even if they violate the law, the Supreme Court has already ceded some of its role in the checks and balances that built this great nation. Congress, specifically the Senate, which has a constitutional duty to review high-level appointments, should not blindly cede its power to the executive branch.

For years now, under Democratic and Republican presidents, there has been bipartisan agreement that the Senate would not officially recess for more than a set number of days, thereby blocking the president from making unilateral "recess appointments." Such appointments bypassed the constitutional process of "advice and consent," installing into positions individuals who were not properly vetted or otherwise stalled in the Senate for potentially serious reasons.

In 2014, the Supreme Court, in its decision National Labor Relations Board v. Noel Canning, invalidated three of President Barack Obama's recess appointments and set a standard that future recess appointments could not happen during a recess less than 10 days in duration. This led to a bipartisan process of regular "pro forma" sessions, following the specifics of Article I, Section 5 of the Constitution, which says that "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting." As a senator from a state close to our Nation's Capital, I have had the privilege of presiding over many pro forma sessions over my three terms in the United States Senate. They are quick but play an important role in the checks and balances.

Never did I think I would witness a president-elect call on the Senate to ignore the Constitution and allow him to install large numbers of high-level nominees without going through the "advice and consent" process. It has been positive to hear senators from Susan Collins (R-Maine) to Tommy Tuberville (R-Ala.) pushback against allowing such appointments, although newly elected Republican leader John Thune (R-S.D.) has left open the possibility.

The Senate, and the Congress as a whole, must not abandon the constitutional principles that have served us through nearly 250 years of our republic. Congress must assert its role as a co-equal branch of government and not recklessly rubber stamp measures or nominees put before it.

With a few exceptions, I have serious concerns about the qualifications of the nominees named thus far by the president-elect. Each one deserves proper vetting and a comprehensive, respectful confirmation hearing. I encourage you to keep an eye on this process and learn everything you can about the individuals selected to lead our federal government. I know I will be keeping a close watch.

Thank you for your time. Please feel free to reply to this email with your thoughts on this or any other topic. As my tenure in the United States Senate winds down, I cherish every opportunity to hear from Marylanders.

In solidarity,

Ben Cardin

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