Does Trump support the Constitution?

Gordon L. Weil

About 240 years ago, two major documents were committed to print.  Both were landmarks and both have been the object of interpretation and evolution.  

One is the U.S. Constitution. The other is Mozart’s Piano Concerto No. 21, a major classical work.  A recent New York Times commentary offered a compelling analysis of what they have in common.

Both must be taken literally: read the words, play the notes.  But much has changed since they were written.  Tastes have changed, the halls of Congress and concert halls have changed, and, above all, American presidents and orchestra conductors have changed.   Within the limits of what was written, there’s room for different interpretations and styles.

The Civil War, the Great Depression, World War II, the Vietnam War, and Supreme Court rulings have all affected the terms and underlying assumptions of the Constitution.  The relative balance of powers between the state and federal governments and between the president and Congress have evolved.

The original drafters understood that the future interpretations of the Constitution inevitably would have to recognize the effects of changes that they could not envisage.  For them, the essence must be preserved: protecting people from the government as provided in the Bill of Rights, the balance of power and individual liberty.

Originalists, like Justice Clarence Thomas, believe that the terms of the Constitution must be interpreted as they were understood when it was written. They assume that the Framers’ thinking embodied almost godlike wisdom that could endure and could apply unchanged to any later turns of history.

An alternate view, probably held by the Framers themselves, would be that the principles were permanent, but just as the world evolved, so would the “living Constitution.”  The challenge for courts would not only be to recognize change, but how the Framers’ views would have evolved on how it should be applied in the new world.

In interpreting Mozart’s concerto, to play it loud or soft, fast or slow is the conductor’s job.  In American government, the job is shared by the three branches of the government.  Increasingly, however, the president has become the conductor of the music of the Constitution.  But, even if a president may alter the tempo and emphasis, they cannot change the tune.

When a person assumes the presidency, the Constitution prescribes the exact commitment they are taking – to “preserve, protect and defend the Constitution of the United States.”  The Constitution requires every office holder down to the local elected official to make the same commitment.  It is an American loyalty oath for those exercising the public trust.

This commitment is necessary, because “absolute power corrupts.”   To avoid the public trust expresed in elections becoming the path to authoritarian rule, as happened in Germany in 1933, the commitment both reminds the new officeholder that they are bound by a written code and requires them to publicly acknowledge their acceptance.

When asked if he supported the Constitution, President Trump, a man who proclaims his own unusually good memory, forgot the commitment he undertook only 100 days earlier.  “I don’t know,” he said.  Really?  Or was he merely trying to give himself enough scope to be able the change the constitutional tune.

He finds one key requirement cannot be observed in pursuing his policy of mass deportation of illegal immigrants.  All persons, not only citizens, have the right to due process of law before the government takes action against them.  That means they must be able to answer the government’s charge and have the complaint and their defense judged by a neutral party.

Trump says that providing due process to the millions he wants to eject would be impossible.  He wants the Constitution to give absolute power to him, because he won a presidential election.  If due process for millions is impossible, then Trump’s policy, not the Constitution, must give way.  That’s the meaning of the obligation to protect and defend the founding document.

He counts on his electoral majority to carry the great weight.  Behind this view may be the “two-tier theory” of the law.  As the law applies to ordinary life, in matters from divorce to crime to contracts, nothing changes.  Most people see no change in their lives and will accept the other tier that gives the president powers unchecked by law.

Ultimately, the issue is likely to be determined by the Supreme Court, perhaps within a couple of months.  Trump claims the automatic right to citizenship at birth in the U.S., found in the Fourteenth Amendment, has limits, allowing mass deportation of “birthright” citizens.  In 1898, the Supreme Court said the right was unconditional.  The text and legislative history were clear.

If the Court ends up agreeing with Trump’s new interpretation, the Constitution would no longer protect people from the government of the day.   The music would end. 

Don't count on the Supreme Court

 

Gordon L. Weil

President Trump seems to be amassing constitutional and legal violations. We await the inevitable action by the Supreme Court to exercise its checks-and-balances power to reverse his excesses.

His actions are likely to be found extra-legal even by a court stacked with conservative justices.  It’s possible that, while Thomas and Alito may not shed their partisan loyalty, the other more responsible justices will give the law dominance over power politics.

Don’t count on it.

Five members of the Court made up the majority in favor of the broadest legal statement of presidential power ever in U.S. history.  While they were joined by Justice Barrett last July, she went along with all their assertions.

That decision was penned by Chief Justice John Roberts.  His support for an almost unchecked president suggests that he will not now support a fresh look at limiting Trump’s powers.  He is a true conservative who may well agree with Trump’s policies.

Trump’s questionable moves take two forms.  First, he declines to follow the spending priorities that are the essence of congressional appropriations.  Congress may authorize or reject spending proposed by the president.  The president must spend just what Congress decides and refrain from spending without authorization.

Yet Trump has cut back on approved spending to the point of virtually eliminating government agencies.  He recognizes that Congress alone can formally terminate an agency, but he gets the job done by shutting it down.   In effect, he exercises a line-item veto, despite the Supreme Court having ruled that presidents don’t have that authority.

He also seeks to subvert the plain language of the Constitution, supported by the Court, the legislative record and historical practice.  He wants to deny citizenship to children of illegal immigrants born in the U.S., known as birthright citizenship.  Their citizenship is “black-letter law,” an unambiguous statement in the Constitution.

Trading on popular opposition to easy immigration, Trump appears to believes that the goal justifies a manufactured interpretation of the clear words of the Constitution.

Beyond these two gambits, he also applies existing laws, including one that formed part of President John Adams’ infamous Alien and Sedition Acts, in ways not contemplated by their drafters nor consistent with historical understandings in Congress and among the states.

The principal reason he can take actions straining the essence of the laws is the compliant Republican majority in the House and Senate.  The GOP members allow his moves either because they share his impatience with democratic processes or because they fear that crossing him may cost them their seats.  Their hold on power may be slim, but it works.

That leaves the federal courts and ultimately the Supreme Court.  They become part of the political system, searching for legal coat hooks onto which they can hang their pre-formed opinions. 

If it ventures too far into political questions, the Court runs the risk of one day facing political retaliation, quite possibly by the addition of new justices to counterbalance the conservative majority.  Roberts obviously worries about direct assaults on the federal courts.

So, the Chief Justice tries to keep the Court rulings as narrow and technical as possible. The Court can support the president simply based on the supposed procedural failings of his opponents and not on the merits of the central question itself.  Such decisions are made on the so-called “shadow docket” where they can be made quickly and without reasons.

A good example is the decision that Trump can transport Venezuelans to El Salvador.  By 5-4, the Court allowed his action based on the failure of the Venezuelans, while being in the expulsion process to bring their case to the correct district court.  The Court said they had due process rights, but let the administration get away with violating that requirement.

In avoiding the substance of issues, the Court can let Trump act freely, while insisting it has lost no power.  In Roberts’ view, the Court should not get involved in essentially political disputes, but should leave them to the president and Congress, the political institutions.  If they are aligned, as at they are now, their will must be deemed the will of the people.

That sends the ultimate recourse back to the ultimate sovereign – the people.  That could mean that the 2026 congressional elections are the next time a decision to approve or disapprove Trump’s authoritarian approach.  Trump has shown the broad implications of his approach and a decision on it should be the central point of the campaign.

Easy talk about defending democracy does not convey the necessary message about the potentially wide reach of Trump’s rule.  To paraphrase a famous statement, if people do not oppose the injustice of authoritarian rule when it affects others, nobody will oppose it when it affects them.