The law versus the president

 

Gordon L. Weil

President Trump’s initiatives have produced a flood of legal actions, charging him with violating laws and the Constitution.  His challengers ask the courts to make sound legal interpretations in their favor, no matter the political orientation of the judges.

The complainants should be worried.  The Supreme Court may share Trump’s expansive view of the presidency, giving him legislative powers.

A second cause of concern is that the courts appear to have begun tipping the balance of power among the three branches of government in their favor.  The legislative power is rapidly fading, as members of Congress are more concerned with self-preservation than the national interest.

The Supreme Court seems to favor Trump.  Its decision in Trump v. U.S. authorized an almost unchecked presidency. Its recent orders allowing the president to control supposedly independent regulatory agencies highlight the Court majority’s agreement with Trump and support for the concept of the unitary presidency.

Look at its handling of Trump’s attack on birthright citizenship.  Instead of making a clear statement on his tortured interpretation, the Court has hidden behind a procedural question to delay a ruling.  Despite clear language and its own solid precedent, it allows Trump to create uncertainty for millions of people.  Its slow response appears intentional.

Oddly enough, a Maine case may be the best indication of a runaway judiciary that, like the president, denies checks and balances that are essential to the American political system.  Here’s the story.

Years ago, the Maine Supreme Judicial Court decided a case pitting mortgage customers against the banks holding their mortgages.  The case related to the speed and ease with which foreclosures could take place.  The Court decided in favor of the customers.

Last year, a new case appeared in which the banks sought to reverse the earlier decision.  A judge now on the Court is a lawyer who represented the banks in the earlier proceeding.   She received some advice that she need not recuse herself and she didn’t.  Hers became the deciding vote in a 4-3 ruling that favored the banks.  Her former clients won.

The official judicial ethics committee found a conflict of interest.  The committee can take no further action; the decision is up to the Supreme Court.  It has done nothing, at least so far.

The Maine Legislature is considering a bill for a study on how to apply judicial ethics to the Supreme Court.  But the Court informed the legislative committee that even its consideration was unconstitutional, because a study could not lead to legislation.  The Court asserted that it alone has judicial power, and the Legislature cannot act.  Obviously, it would rule that any such action is unconstitutional.

Carry this assertion over to the federal level.  Congress can define court jurisdiction.  If Congress were to rein in the Supreme Court from its broad support of a dominant president, it probably would face a presidential veto, and the Court could rule its law as unconstitutional.  Without any appeal, the only reactions then available would either be adding justices or amending the Constitution.

In one of the wisest political acts of his presidency, Joe Biden vetoed the addition of scores of federal judges, all of whom would have been named by Trump.  Had he accepted that he was a one-term president, he might also have been willing to propose increasing the size of the Supreme Court to restore some balance.  Lincoln and FDR both did.

The president is radically changing the Constitution as it has evolved over the centuries.  Trump appears to believe that, in an emergency he declares, he is not bound by the Constitution, the laws or the courts. His position implies that “democracy” no longer works and should be replaced by a presidency of unlimited power.

Congress, when dominated by the president’s party, is proving to be a docile accomplice.  The U.S. now has achieved the goal that then Speaker Newt Gingrich sought in the 1990’s – parliamentary government in which party discipline translates into unified support of a party’s president and unified opposition to the other party.

The Supreme Court, with its jurisdiction under attack by the Trump administration, could educate the president on what the law is. That’s what the U.S. Court of International Trade did this week, when it overturned almost all of Trump’s tariffs.  However, the Supreme Court looks more likely to join the other branches in transforming the American political system. 

The people hold the power to settle the matter in the 2026 congressional elections.  Does the American voter want to replace constitutional checks and balances by presidential rule?   Can they elect a Congress that recovers its powers and restores the intended balance with the president and the Court? That may be the real choice next year.