In his first press conference as president back in March, Joe Biden said “We have to prove democracy works” by proving that the institutions of government work.
This week, two branches of the government of the United States face clear and present dangers – actions of contempt – that threaten the rule of law in the United States.
Will Congress be denied oversight of the executive branch?
The House of Representatives this week will begin the process of seeking criminal prosecution of Stephen Bannon, a former counselor to President Trump who continued to serve as an unofficial advisor in the last years of Trump’s term. Bannon was with President Trump and in conversations with him in the days leading up to the deadly insurrection on January 6, the ultimate purpose of which was to stop Congress’ certification of the November 2020 presidential election and thereby prevent the peaceful transfer of power to the election’s winner, Joe Biden. The insurrection failed.
The House of Representatives established a bipartisan Select Committee to investigate all aspects of those events: what happened, who was responsible, what plans were in place to protect the Capitol, what was the chain of command and steps taken to send forces to put down the violence and clear the Capitol. The Select Committee also wants to know what the president did that day, who he talked with and what was said, what decisions were made and what his intentions were.
Bannon’s testimony is crucial to understanding the events of that day and what Trump did.
Bannon is refusing to testify, citing orders from Trump that he not cooperate, with Trump citing “executive privilege”: the ability of a sitting president to shield officials and documents from investigation in order to prevent superfluous litigation from overly burdening a president’s already full agenda.
However, the United States has but one president at a time. The only president who can assert executive privilege is the one in the Oval Office. And President Biden has waived any assertion of executive privilege for the purposes of the Select Committee’s work.
Bannon is happy to talk to the media – and to authors of books about Trump – and is free to give them his account of what he knows of what Trump was doing to overturn the election. But he will not comply with a subpoena from the House committee to give evidence.
The Select Committee will find Bannon in contempt for refusing to testify. The House will vote a resolution seeking action by the Justice Department to enforce the Committee’s subpoenas to Bannon through a criminal prosecution for his contempt.
Why is this important? Under the Constitution, the Congress is a co-equal branch of government, equal in stature to the Executive. Congress’ constitutional responsibility is to ensure that the Executive Branch conducts its business in conformity with the laws Congress has passed.
If Congress cannot oversee activities by Executive Branch officials and those who engage with it, Congress cannot fulfil its duties, meaning that there is no check and balance on what the president does.
With only a handful of exceptions, Republicans will vote against this contempt proceeding. This means they are voting to permanently weaken the Congress with respect to the president. This means that should Republicans take control of the House, there will be a precedent for their oversight work of Joe Biden (office until 20 January 2025) to be stonewalled. This means that presidential abuses of power can be placed beyond the rule of law under the Constitution.
Will the Supreme Court uphold Texas’ ban on most abortions?
This week, the highest court in the United States will receive an urgent appeal from the Department of Justice, asking to overturn a lower court decision that removed an injunction on the new abortion law of Texas. That law bans abortions after six weeks and enables any citizen to sue – and get a US$10,000 bounty if successful – anyone who provides an abortion or assists in an abortion (including, for example, anyone who drives a woman to a health clinic for an abortion that is illegal under the Texas law).
The Texas statute on its face is plainly, inescapably unconstitutional under landmark Supreme Court decisions in 1973 and 1992 that established abortion as a woman’s right to so choose under the Constitution. As the New York Times explains,
Supreme Court precedents prohibit states from banning abortion before fetal viability, the point at which fetuses can sustain life outside the womb, or about 22 to 24 weeks into a pregnancy. That makes the Texas law unconstitutional under the controlling precedents.
The unconstitutionality of the Texas law could not be plainer.
In addition, it is a tenet of jurisprudence that judges be guided by the doctrine of stare decisis. A legal policy unit at Cornell Law School describes the doctrine:
Stare decisis is Latin for “to stand by things decided.” In short, it is the doctrine of precedent.
Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. According to the Supreme Court, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt.
Trump appointed three justices to the court during his term, giving it a solid conservative majority. All were selected with the belief that they could – and likely would – vote to overturn Roe v Wade, the bedrock abortion rights decision. In the hyper-intensive atmosphere involving the confirmations of now-Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, all pledged, in their own way, to have serious regard for stare decisis. But not necessarily to always be bound by it.
As the Supreme Court considers the Texas case and a December case arising in Mississippi – which has outlawed abortion after 15 weeks – we are about to find out if the highest court in the United States will rule if there is a constitutional right to an abortion or not.
After four years of strain under the Trump presidency, these two constitutional challenges to the Congress and the Supreme Court will inform us as to whether the institutions of America’s government and the United States’ democracy are in good working order or whether we have a crisis of governance.