There are three branches of government: the Executive, led by the president; the Legislative, consisting of the Senate and House of Representatives; and the Judicial, with the United States Supreme Court as the highest court.
The was a Saturday Night Live skit asking, “What still works?” They went through a bunch of areas and concluded that nothing was working. If you look at what is going on today in America, relating to two of the three branches of government, you might have the same feeling.
Americans do not agree on much, but a majority of Americans do not want a Biden-Trump rematch. Yet it appears this is where we’re heading. We went through this four years ago. Since then, neither one of them has aged well. I can spend a column going through why neither one is fit to be the next president, but I will not do it now. These are probably the two worst candidates in my lifetime. The only one who comes close is Senator George McGovern, who was trounced by Richard Nixon.
I do want to comment on possible vice-presidential choices. Normally, the vice president does not matter, but since we are dealing with an octogenarian and soon-to-be octogenarian, both of whom are declining cognitively, it becomes an issue. The current VP, Kamala Harris, is mediocre. She does not inspire much confidence in her ability to step in if necessary. What’s worse is what’s going on in the Republican VP sweepstakes, or what I call the Trump groveling tour. Mike Pence did everything Trump wanted for four years until January 6, 2021, when he followed the law and refused to go along with Trump’s illegal plan not to certify the election. Elise Stefanik said that if she were vice president, she would have done Trump’s bidding and would not have certified the results. She is a Harvard University graduate, just another product of a school that has become the poster-child for what is wrong with the educational system. Another potential VP candidate, Senator J.D. Vance, said that the president has the right to ignore a ruling of the Supreme Court that he thinks is illegal, which is consistent with Trump’s comments. Vance went to Yale Law School. I guess he must have “forgotten” the cases which discussed the authority of the Supreme Court, starting from the 1803 case of Marbury v. Madison and subsequent cases such as Youngstown Sheet & Tube Co. v. Sawyer in 1952, in which the Supreme Court struck down an executive order directing the secretary of commence to seize the steel mills. You do not have to go to law school to know these cases. Any high school or college class on American government would have addressed these issues.
The Legislative branch is not much better. The Republicans in Congress refused to pass any aid bill for Israel, Ukraine, and Taiwan if there was no agreement on the border. They said they needed legislation including giving the president additional necessary authority to deal with the border crisis. After months of negotiation involving Republican Senator James Lankford, a bill was proposed, which was a significant change in the law. Then Trump came out and said not to pass it because it would help Biden in his reelection. In other words, it was a good bill that would solve the problem, but we cannot let it happen because it would hurt Trump. So first the Republicans in the House and then the Republicans in the Senate caved and torpedoed the bill. They did not say the obvious reason but complained about the bill and said the president really did not need it, since now all of a sudden, he had the authority. It was also opposed by a few progressives because it went too far.
Even when the House of Representatives tried to pass the ridiculous Articles of Impeachment against Homeland Secretary Alejandro Mayorkas, they could not do it.
There was a new bill in the Senate to provide funding to Israel, Ukraine, and Taiwan without legislation concerning the border. Trump came out and stated that it is time to stop giving out handouts to other countries. This bill may now also go up in flames. This is what the isolationist MAGA base wants.
Then there are the courts. There have been two historic issues that have recently come before the courts. The first is Trump’s argument of presidential immunity for any conduct he did while he was president. I listened to the oral arguments and read the decision. The decision was a well-written decision that went through all of the issues raised and came to the correct conclusion. The judges at the oral arguments asked pertinent questions, and the attorneys did a professional job in trying to respond. Then there was the oral argument before the United States Supreme Court to decide if a state can remove a potential candidate for president because he engaged in insurrection based on the Fourteenth Amendment. Although to me it was clear that the court had made up its mind before the oral argument, the give and take between the justices and the attorneys was on a level that was expected. It appears that right now, the only branch of government that is working the way it should is the judicial system.
At first, having one out of three working the way it should is sad, because two out of three is bad. However, we have seen this before, where it has been the courts - and in particular the Supreme Court - which have interpreted the Constitution in the absence of any will in the legislature or in the executive branch to deal with the problem. The first case that comes to mind is Brown v Board of Education, where the United States Supreme Court ruled that “Separate but Equal” was unconstitutional. Having separate facilities or areas for White and Black people had been the way things had been done in southern states for years. That block of states was so strong that no president could put pressure on Congress to pass legislation, nor could Congress pass legislation to put an end to the practice. Instead, the Supreme Court ended up addressing it. Other examples relate to the right to the appointment of counsel and right to remain silent, which the Supreme Court issued rulings on. A violation of the right to remain silent can result in guilty people going free because their statements cannot be used against them. Historically, standing up for the rights of criminal defendants has not been popular with many segments in America. Without a Supreme Court making these decisions, most likely none of these protections would have ever happened.
We see the power that the courts can have to fix the problems caused by flawed Legislative and Executive branches. Maybe if it is the courts that are the functional part of the three pillars, there is hope. So don’t be sad, cause two out three ain’t bad.
Warren S. Hecht is a local attorney. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.
