Gordon L. Weil
President Donald Trump singled out Maine Gov. Janet Mills
to ask if she would comply with his executive order on transgender athletes.
“I will obey state and federal law,” she replied.
“Well, I’m ...We are the federal law,” he told her.
“See you in court,”
she replied.
Trump concluded that he would win easily and taunted Mills,
suggesting she has no future in politics.
Contrast Trump’s remarks with John Adams’ 1780 definition of
the American republic as “a government of laws, not of men.” Adams was later the second president.
Trump’s view follows his earlier statement that “Article II
[of the Constitution] allows me to do whatever I want.” The president is redefining his role. If that holds, then check and balances among
Congress, the president and the courts are dead.
The avalanche of executive orders issued by Trump has
raised at least two major issues, and both will inevitably end up in
court.
Has the president taken on powers that, under the
Constitution, belong to Congress?
Can the president selectively veto congressional spending by
closing or reducing federal agencies or programs through forced staff cuts?
Trump may be encouraged by two factors. First, he won the election. His representatives claim that the majority
vote victory gave him a mandate to carry out every promise or proposal he had made
in the campaign. This electoral endorsement
would amount to a sweeping legislative act, making irrelevant both Congress and
the courts.
The other support for Trump’s assertion of power comes from
the Supreme Court decision in Trump v. U.S., issued last year. The Chief Justice, on behalf of the Court,
wrote, “the system of separated powers designed by the Framers has always
demanded an energetic, independent Executive.”
The Court’s ruling implied that the president could defy Congress.
Presidential executive orders might amount to federal
legislation that ordinarily would be under congressional control. If Congress is dominated by the president’s
allies, his solo lawmaking may go unchallenged.
Historically, limits on presidential lawmaking have resulted from the
president’s need to compromise with a skeptical Congress, but that’s missing
these days.
In the end, presidents may be lawmakers, but Trump is not
the law. The Supreme Court long ago made
itself the judge of what the law is. It
can decide that, while Trump could issue an order, it cannot violate the
Constitution or existing laws. Mills implied
that Maine could prevail in Court, possibly because Trump had ignored the
powers that states lawfully retain.
Acting mostly through Elon Musk, who holds a temporary
government position, the Trump administration has tried to shut down the U.S.
Agency for International Development and to terminate or reduce federal
government programs. These actions came
swiftly, stunning both federal workers and the private sector.
Presidents may dismiss federal employees, provided they respect
employee rights set by law or labor contracts. Musk may be using his business practices to
dismiss people under an approving president, but it is doubtful that the Court
has yet allowed presidents to go as far with public employees as Musk demands.
These firings amount to an “item veto,” by which a
president can block a portion of spending that has been ordered by law. Trump is not alone among presidents in
wanting to have this power. This move is
called rescission and for 50 years it has been banned by law. President Bill Clinton tried it, and he was
overruled.
Just as Republican state attorneys-general brought cases
against Biden policies, Democratic AGs are now lodging many legal challenges to
Trump. The courts have begun acting and mostly
trying to stick to the law. That means both Trump and his opponents can win
procedural points, but the full story has just begun to be written.
Former Maine AG and Harvard Law School lecturer James
Tierney claims that the state AGs play “a vital role” in challenging the
president. But, he says, they know that
“Donald Trump is the President of the United States. They are not going to sue their way out of
it.” Plus, congressional Republicans can
continue to allow Trump unchecked power.
Trump’s treatment by the same Supreme Court that accepted
his assertion of power will be the most important test. Will it impose any
limits on his actions and Musk’s? If it
approves his moves and appears partisan, a constitutional crisis caused by his
view of presidential power will have arrived.
If it overrules Trump, some of his supporters say the president
should ignore unfavorable court decisions.
He should rely on the almost unlimited power given him by the voters in
2024. If he disobeys the courts, that
would also bring the ultimate crisis.
James Harrington, a British philosopher, wrote in 1656: “The
empire of laws is concerned with right; the empire of men, with power.” Which do American voters want?
