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Scott Bloomberg is an associate professor at the University of Maine School of Law, where he teaches constitutional law and other subjects. This column reflects his personal views and not the views of Maine Law or the University of Maine System.
Our nation’s founders were obsessed with preventing concentrated power. They had experienced a British monarch and an aristocratic parliament that routinely abused their powers, and — as the saying goes — they did not intend to replace one King George with another.
The founders accordingly embedded several protections into the Constitution to ensure that the new government they were creating did not replicate the sins of the one they had just shed off. The core of these protections is the system of checks and balances the Constitution creates between the three branches of the federal government.
When the president abuses his or her power, the Constitution arms Congress and the federal courts with several tools to hold the president to account. The same is true if Congress or the courts step too far out of line.
Unfortunately, it is no new revelation to observe that partisan divide has greatly eroded our government’s system of divided power. The framers thought that our federal leaders would jealously guard the powers of their respective branches of government. Instead, party power has too often been guarded at the expense of the separation of powers.
To be sure, all of our U.S. senators and House members — regardless of party — should use their constitutional powers to check the president’s most blatant abuses of power. But I believe Sen. Susan Collins bears a special responsibility.
Not only is Collins a respected, senior Republican member of the Senate, she also put country over party and voted to convict President Donald Trump for incitement of insurrection against the United States four years ago. Since conviction on impeachment means permanent disqualification from ever holding federal office again, Collins’ vote reflected her judgment that Trump had so abused the powers of his office that he could never again be trusted with said powers.
That president now being back in office, Collins must use her power as a senator to ensure that our system of checks and balances prevails; that our Constitution prevails.
How can she do this? I believe she should start by forming a coalition of Republican senators and House members who will promise to take specific actions in response to specific abuses of executive branch power. Call it a “Red Line” Caucus — a caucus that will establish and communicate red lines the president may not cross and the consequences for crossing them.
Red lines might include: flagrantly violating acts of Congress; ignoring decisions of the federal courts; using the office of the presidency for personal enrichment (through crypto schemes or otherwise); and other abuses of power that the caucus could identify with specificity.
Consequences for crossing such lines might be minor or major depending on the line being crossed. Some crossed lines could result in the stoppage of Senate confirmation hearings for judges and officers. Other, very serious, crossed lines — say, disregarding a Supreme Court order — might result in caucus members becoming independents and joining with Democrats to change the balance of power in both chambers of Congress.
Who would join this Red Line Caucus? I would hope that many elected Republican officials would join based purely on a commitment to civic virtue, the rule of law, and the Constitution. In that vein, I would start with the Republican senators and House members who — like Collins — deemed Trump unfit to ever hold office again four years ago. Three of the seven Republican Senators who voted to convict Trump remain in office: Collins, Lisa Murkowski of Alaska, and Bill Cassidy of Louisiana. On the House side, two Republicans who voted to impeach Trump remain in office: Rep. David Valadao of California and Rep. Dan Newhouse of Washington.
But perhaps a more realpolitik answer is that Republican officials are more likely to join if they represent so-called “purple” districts or if they are not planning to seek reelection. The incentive for the former group of officials to join will only increase if the president’s popularity continues to wane. With thin margins in the Senate and the House, a Red Line Caucus may well be able to garner enough members to create a check on power with some real teeth.
Our Constitution contains many checks on the president’s power. They are but words on paper unless they are used. I urge Sen. Collins to lead her colleagues in making those checks real, and to do so quickly. There are some red lines that a nation cannot easily walk back once crossed.
