Panel offers insight on how Constitution’s checks and balances affect presidential power

Feb. 16--At Central Washington University Wednesday morning, university president James L. Gaudino said the tension on campus since the election has been "palpable."

"You can hardly have a conversation with anybody without the expression of insecurity, of fear; in some cases anger, but more fright about what the future holds for our students, and in some cases, for our faculty and our staff," he said.

The question on everyone's lips, Gaudino said, is what unilateral powers President Donald Trump possesses. Can he reinstitute stop-and-frisk policies for police? Can he roll back gay marriage or abortion rights? Can he order mass deportations?

To address those questions, the university brought in two judges, a law professor and a newspaperman who advocates for open government. The panel members spoke for more than 90 minutes to a crowd of about 75 students, faculty, staff and community members who came to learn about the separation of powers between the three branches of government.

Basically, the experts said, government is built on bureaucracy, which could allow for swift fulfillment of a president's orders if everyone is on his side, but can also significantly impede that movement through division, resistance and sheer dysfunction.

"It makes sense that people are confused about what the president can do," partly because of the way presidents talk about their own powers, said assistant professor Lisa Marshall Manheim, who teaches constitutional and election law at the University of Washington's School of Law.

The steady stream of executive orders issued from the White House in Trump's first few weeks can be misleading, she said.

"You hear this and think, 'Oh my gosh, the president has essentially unlimited power.' That's not true," she said. "The president has a lot of power, but the way the Constitution is structured, it is really hard to do anything on his own.

"If he doesn't have Congress with him; if he doesn't have the courts with him; if he doesn't have state and local governments with him; if he doesn't have the bureaucracy with him ... then the president can actually get very little done."

For issues such as Deferred Action for Childhood Arrivals, however, since it was enacted by executive order, Trump can dismantle it with executive order, she said.

The panel talked about states' rights too, explaining that as interpreted by the Supreme Court, the Constitution does not allow the federal government to force state governments to do anything.

The federal government can threaten to withdraw funding from states that don't cooperate, but even there, Manheim said, Congress would probably have to pass statutes to do so.

With the travel ban, Manheim said Trump can exercise significant control in the area of immigration, so his order went into effect and people were immediately detained at airports.

However, legal complaints were quickly filed in courts around the country, and the courts ruled the ban unconstitutional and illegal, so it stopped.

That checks-and-balances process depends on tradition and respect for the system, said Judge Robert S. Lasnik, who holds senior status with the U.S. District Court in the Western District of Washington.

"You will search the Constitution in vain to find anything that says the courts have the final word on whether a law is constitutional or not," he said. In fact, that principle of "judicial review" was established in 1803 in the case of Marbury v. Madison.

When the courts issue an order, "We have no police force to back up our order; we have no ability to marshal forces. All we have is the persuasion of the opinion and the custom in our country of the executive branch deferring to court decisions," Lasnik said. "Do they have to obey what (the courts) do? It's a miracle that they do."

With the travel ban case, he said, "Even this administration accepted the ruling. They want to criticize the judge ... but the process is respected."

As for fears that those checks and balances will be weakened by having a Republican Congress that sides with Trump, along with Trump-friendly judges appointed to the courts, panel members said bureaucracy still exists. And for the judicial branch, federal judges have lifetime appointments and cannot be fired or have their salaries reduced, largely shielding them from the changing whims of the other branches.

Justice Steven Gonzalez of the Washington State Supreme Court was less optimistic in his responses Wednesday, reminding the audience that the internment of Japanese-Americans during World War II was legal and upheld by the Supreme Court. That decision has never been overturned.

"There sure are instances where the courts have stood up, and there are instances where the court has failed," Gonzalez said.

As for what individuals can do when they're feeling helpless, Rowland Thompson, executive director of the Allied Daily Newspapers of Washington and a longtime advocate of open government, says staying informed is the first step. He specifically recommended the Washington Post and the New York Times as doing exemplary watchdog journalism.

"(Thomas)Jefferson said a well-informed citizenry is the best defense against tyranny," Thompson said.

Several professors attended Wednesday's panel and asked questions of the visiting experts.

Prof. Ian Quitadamo, who teaches biology and science education, said every course on campus should include a civics component.

He's seen much fear on campus in recent months. The day after the election, two young Muslim women were in tears in class.

But he told his students they now have an opportunity to fight for what they believe in and to sharpen their own opinions.

"I made it an absolute priority to come here (to the panel) today, because I have been a huge fan of (State Attorney General) Bob Ferguson and our state courts in standing up for what is right, and to do it unapologetically, and to do it in a way that is clearly based on reasoning and critical thinking," Quitadamo said. "It's a celebration of the ability to think and reason and to counteract the toxic rhetoric that is emanating from the White House on a daily basis."

For Prof. Rodrigo Ranteria, who teaches anthropology and serves as an adviser to the MEChA club (Movimiento Estudantil Chicanx de Aztlán), the concerns about immigration are personal. He's here on an H1B visa, and says that means his status is "precarious" under this administration.

At the panel, "I was hoping to get a better sense of what is and what is not possible, in terms of how the rhetorics are matched by institutions," he said. "It was really helpful. There's this complexity at every single level ... that really can potentially limit power."

Both men said they have conservative students in their classes, as well, and that participating in a well-rounded discussion is vital to the learning process.

"We're not here to create clones; we're here to create free-thinking people who can critically think their way through difficult issues," Quitadamo said. "And if someone has done that and they have a conservative viewpoint, at least they have thought their way through it. If they assume a liberal viewpoint, at least they have thought their way through it."

Ranteria said the best education comes from shared life experiences, where students can find common ground and challenge those "imaginary walls" between them.

"But we have to be careful that our reactions do not do exactly the opposite and exclude those people that are conservative and Republicans, which can be easily done," he said. "What we do here is to create that impossible middle ground. That's when we are really fulfilling our mission."

While there is still a lot of fear on campus, Ranteria said, there is also a big opportunity for the university to teach students what it means to engage with their world.

"We are not here just to impart knowledge; we're here to create citizens," he said.

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