The Constitution Annoys Trump; judges act independently

 

Gordon L. Weil

For one bright, shining moment last week, the federal court system seemed to get the better of President Trump.

The U.S. Court of International Trade, a regular part of the federal court system, ruled unanimously that Trump’s use of an emergency law to change tariffs across-the-board was not permitted by that law. 

It did not question his judgment about the existence of an emergency; but rather whether his actions were allowed if there were an emergency.  That’s a critical difference.  The president’s judgment is protected by the separation of powers.  But he does not get “unbounded authority” to say what the law is; that’s the role of the courts under the same separation powers.

The Trump administration response differed.  “It is not for unelected judges to decide how to properly address a national emergency,” a White House spokesperson said.

This statement reflected the view that winning an election gave Trump the authority to act as he sees fit and not subject to judicial review, considered to be “judicial tyranny.”  The fact that the judges are not elected, while the president is selected by voters, makes all the difference.

Disparaging the judiciary, because it is controlled by unelected judges, misses the point.  The Trump administration may see this presidency as an unusual chance for the exercise of supreme power, unimpeded by either a GOP Congress or an unelected court.  Or, just as likely, they may reveal a fundamental lack of understanding of the Constitution.

Federal judges were intentionally given life appointments to remove them from the political wars of the day.  “It is emphatically the duty of the Judicial Department to say what the law is.”  Under “a government of laws, not of men,” all must obey the law.

In the Federalist Papers, Alexander Hamilton argued that “permanent tenure” in office guarantees the independence of justices, allowing them to ensure that the other branches of government do not violate the Constitution.

Hamilton continued: “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men … sometimes disseminate among the people themselves, and which have a tendency … to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

In short, the non-elected status of judges is essential to their independence so they can serve a prime function of the government – protecting the people from their government if it goes beyond the limits of the balanced powers “we, the people” authorized.  That may prove inconvenient or annoying to Trump, but that’s exactly what was intended.

Trump is not the only president to try to exceed his authority.  In a recent example, former President Biden used a twisted interpretation of a law intended for a different purpose to spend hundreds of billions of dollars to forgive student loan debt.  He lacked congressional approval. The unelected Supreme Court appropriately overruled the elected president.

Trump took advantage of a growing conservatism to win his 2016 election.  He turned to the Federalist Society, the leading conservative legal organization, for nominees to the federal bench.  These judges overruled abortion rights. Trump had correctly counted on them to produce a decision consistent with his own position.

In his second term, he has learned in one case after another that his appointees, while conservative, are mostly competent jurists, willing to oppose his initiatives.  They may render conservative interpretations of the laws and Constitution.  Trump has come to realize that they are conservatives, but not necessarily Trumpers.  They will not automatically fall in line behind his policies.

Imbued, for the time being, with a sense of unlimited power drawn from his electoral vindication, Trump now attacks the Federalist Society.  He may forget that six of the nine members of the Supreme Court, on which he will ultimately depend to affirm his policies, are members of the Federalist Society.

Whenever Trump receives an unfavorable federal court decision, he often lashes out at the judges, claiming they are corrupt or partisan.  He seeks to undermine public confidence in the judiciary, possibly hoping the judges will retreat to save their reputations.  Some of his backers say the judges should be impeached for denying the demands of the elected president.

Trump also shows a massive disrespect for the court system by pardoning hundreds of serious criminal offenders who were convicted in jury trials.  He sets himself up as a new court of appeals, rewarding political allies and major contributors.

As I have discussed last week and earlier, the Supreme Court may make or break many Trump policies when it takes a closer look at the extent of his presidential power.  The outcome could go either way, but his attacks don’t help him make his case at court.

 

Republican lawmakers challenge government chief

 

Gordon L. Weil

Only two elements of the federal government seem capable of halting President Trump’s overreach in using his powers – the courts and at least some Republican members of the House and Senate who could join the Democrats in reclaiming congressional powers.  So far, it’s not the GOP, with one Republican senator admitting she’s afraid of Trump.

But there’s at least one clear case of GOP legislators pushing back against an executive effort not only to fire experienced personnel but to slash or abolish a government agency.  It happened in Oklahoma this month.

Governor Kevin Stitt is a Republican.  At the start of the current session, the House was composed of 80 Republicans and 20 Democrats.  The Senate was composed of 39 Republicans and 8 Democrats.  Stitt should be able to get backing for almost any action.

In mid-March, Oklahoma experienced major wildfires, which state and local firefighters struggled to extinguish.  The Oklahoma Forestry Service, the key state agency, had undergone staff cuts under Stitt and was limited in how far it could extend its resources. But the governor claimed that it had deployed only about half of its personnel on the peak day of the fires.

He promptly fired the head of the OFS, a highly respected person who had worked at the agency for 40 years.  The governor also cut other top managers.  He went even further, questioning the need for the agency and proposing almost fatal cuts to its budget.

In Trump’s Washington, the president could have gotten away with such moves.  But not in Oklahoma City.

The House Speaker and the Senate president pro tem both spoke against Stitt’s actions. They pledged to ensure that OFS funding would be locked in.  Their stance mattered because, even after Stitt implicitly admitted that the entire state force had been deployed, he did not back off. Only after public opinion swung to back the legislative leaders, he said OFS would survive.

Why could Oklahoma Republicans oppose their own governor, while the GOP in Congress acquiesces in Trump’s moves, even at the expense of their own constitutional powers?

With political support that cannot be attributed to Stitt’s endorsement, the Oklahoma members may feel more loyal to their constituencies than to their governor.  Local opinions mattered more than the demands of a governor placing his views ahead of the public interest. In relatively small districts, voters could get to know members, rather acceding to Stitt’s influence.

The split between the two branches of government went a step further.  The governor complained that the legislature had passed some bills sponsored by Democrats.  One-party rule, obviously possible, suited him.  So much for meeting public sentiments in favor of government cooperation.

House Speaker Kyle Hilbert responded to Stitt.  He noted that 20 percent of the House was Democratic, but only six percent of the bills passed had been sponsored by Democrats. 

Apart from the specific issues, the Oklahoma case reveals the survival of institutional checks and balances can take place even when one party completely dominates and that bipartisanship can happen even in a setting far more partisan than Washington.

 

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Trump wants absolute power

An immigration case involving a single man reveals the heart of the issues raised by the Trump presidency.

Trump and his core team believe that he has virtually absolute and unchecked power.  His political revival is asserted as evidence that the American people want him to decisively change their government.

The case involves the removal from Maryland of Kilmar Armando Abrego Garcia, who claims refugee status and who remained in the U.S. as the result of a court order.  The Department of Justice says he was expelled because of an “administrative error.”

The government refuses to attempt to return him to the U.S., despite a unanimous Supreme Court order, backing a decision of a federal district court. The “administrative error” overlooked his right to due process, including a formal hearing.

DOJ officials argue that the courts cannot order the executive branch to “facilitate” his return.  They maintain that the Constitution gives the president complete and exclusive authority over foreign relations, making it impossible for the court to require him to take an action relating to the man, who is now in prison in El Salvador (the Savior).  

No basis exists for asserting that presidential authority over foreign affairs is complete and exclusive.  For example, the Constitution gives Congress authority in approving treaties, sanctioning enemies, declaring war and controlling immigration.  It may delegate functions to the president, but it retains ultimate control.

Most importantly, it has the power of the purse.  It may pass laws affecting the exercise of presidential powers by denying the use of federal funds for a specific purpose. 

The courts, too, have powers relating to the exercise of foreign relations. They are responsible for ensuring that all branches of government act within the requirements of the Constitution and laws, including due process. 

Despite DOJ claims, the Supreme Court has issued decisions, respected by the executive branch, related to government actions taken outside of American territory.  In the case of a person illegally sent by the executive branch to El Salvador, courts can issue orders to the president who sits in Washington.

The courts try to carefully consider their decisions and may issue temporary orders to halt executive branch action while they deliberate.  The executive may disagree, but it must comply, at least temporarily.

Judges disapprove of government action being taken despite such a restraining order, as the Trump administration has done in the case involving the hasty transfer of hundreds of Venezuelans to El Salvador without due process. 

In that case, the judge has found that the administration may be in contempt of court.  If he issues such a ruling, the DOJ would have to prosecute violators.  The judge warns that he could appoint outside lawyers, if the DOJ refuses to act.

When swift presidential action forces the court into making rapid rulings without full review, a district court judge, sitting alone, may be made to appear as a partisan adversary.  The president may claim to be tussling with an “unelected” opponent rather than disobeying a court.

The assertion of broad presidential foreign relations power is part of an attempt to exercise nearly total government power, pushing aside Congress and the courts.  The Republican Congress has voluntarily acquiesced, but the federal courts continue trying to ensure executive branch actions are legal.

Many federal court cases across the country involve complaints that many of Trump’s executive orders and DOGE agency-slashing moves violate the law.  By acting rapidly, the president has forced courts to act quickly either to suspend his actions or consider them after the fact.

In the federal government, each of the three branches can control, limit or delay action by each of the others.  Constitutional checks and balances are meant to ensure that nobody can exercise unilateral power, akin to authoritarian rule. 

No election, no matter how strong its political message, allows the winner to annul the constitutional system.  Elections and policies come and go, but the system must prevail.  If not, we can reach a point, as we have, when the president threatens to expel citizens he considers serious criminals.

That’s wrong for a citizen and is also wrong for a non-citizen, like Abrego Garcia.  Due process  does not apply only to a citizen; it applies to a “person” in the U.S., however they got here.

In an obviously staged event, the president of El Salvador met with President Trump at the White House.  He refused to return the man, saying he would not send a terrorist to the U.S.  There is no evidence that the man is a terrorist. 

But Trump did not correct him or say the U.S. would accept him in line with the Supreme Court order.  Instead, he smirked in approval.  Later, Trump’s press secretary defiantly asserted Abrego Garcia would never return to the U.S.

Is this where the Constitution stops?

 

Trump would bypass Congress, Court in TikTok case

 

Gordon L. Weil

We have front-row seats for a major fight, perhaps the constitutional Fight of the Century.

Three contenders are in the ring, each a heavyweight.  They are the Congress, the Supreme Court and President-elect Trump, who just got involved.  The outcome could reveal which of them wields the greatest power.

Last April, Congress passed with overwhelming majorities, including all four Maine members, and President Biden signed a law ordering ByteDance, the owner of the social media giant TikTok, either to sell it or shut it down.  The new unconditional federal law gave ByteDance until January 19 to act.  The president is ultimately responsible for carrying it out

China has a record of stealing or accessing U.S. data.  This week, the Treasury Department reported a “major incident” of Chinese hacking.  China has been formally designated as an American adversary.

Congress, Biden and former president Trump have all expressed concern about the control of ByteDance by China of a company that has access to personal information of millions of Americans.  While he was president, Trump tried to shut it down, but was blocked by the courts.

But ByteDance understandably opposed the law, so it challenged it on the grounds that Congress had exceeded its authority under the Constitution.  Because the First Amendment is meant to prevent government interference with freedom of speech, it claimed that Congress had gone too far.

If ByteDance did not divest, the requirement to end the millions of communications that take place on TikTok would amount to federal control of speech.  The company also stated that it is owned by international shareholders, not the Chinese government.  But Congress had decided that China controlled it, and that decision is not the key issue.

The case went first to a three-judge panel of the U.S. Court of Appeals in Washington.  All three found that Congress had not violated the Constitution, because it acted in the interest of national security.  The judges had been appointed by presidents Reagan, Obama and Trump, making it difficult to call its ruling partisan.  ByteDance appealed to the Supreme Court.

The Court is trying to act quickly on the appeal.  It must decide whether Congress exceeded its legal powers, but it will not decide if TikTok must close.  That is a judgment for ByteDance, which could resolve the matter by selling, though the law requires it to have a buyer lined up by January 19.

If the Court decides that Congress acted constitutionally, then ByteDance must quickly act.  If it finds that Congress exceeded its powers, ByteDance may continue to operate TikTok.

President-elect Trump’s lawyers recently requested that the Court delay its proceedings until after he takes office on January 20. They claim that Trump is uniquely qualified to negotiate a resolution of the issue of China’s control.  In effect, Congress and the Court should back off and turn the matter over to him. 

Trump’s last-minute move seems to ignore the fact that the law takes effect if not declared unconstitutional.  He might try to avoid that point by quickly deciding that China is not an adversary of the U.S., despite earlier findings by Biden, Congress and himself.

During the 2024 presidential campaign, Trump became quite popular on TikTok and told voters that he would not let it close down.  This may be the reason why he has changed his views on its threat to America security and the privacy of its users.

Trump has put the Supreme Court and most of the GOP members of both the House and Senate on the spot.  In effect, he has asserted that both his role as president and his superior powers of negotiation should displace the normal legislative and judicial operations of the federal government.  On January 19, Trump will not yet be president, so can he now make this claim?

When the Court decided that the president has almost unlimited powers, it might not have thought he would want the Court itself to defer to him.  Now, the Court is on trial and will reveal how it reacts to his pressure to step aside and let him settle the matter.  If it gives Trump what he seeks, it would surely have to be seen as a partisan, political body.

He would ignore a law backed by his own supporters, who responded to his opposition to China.  That’s possible, since he has explored ignoring another long-standing law that limits presidential spending powers.  His unusual Court filing is extravagant in its self-praise, making it appear that he deserves deference not usually given to presidents.

The conflict is about whether Congress acted constitutionally, if the Court should suspend acting  when asked by the president-elect, and if the election empowers the president to rule rather than to govern within a system of checks and balances.

All that makes for a big fight.

Congress should hold Trump accountable

 

Gordon L. Weil

“The Man Who Would Be King.”

That’s the title of a short story (made into a movie) by Rudyard Kipling, a famous British writer.  The tale is about a man who works his way to absolute regal control.

The question today is whether that title would apply to President-elect Donald Trump.  Maybe what Kipling made happen in a distant land can’t happen here.

“In England,” Alexander Hamilton wrote in arguing for the Constitution, “the king is unaccountable….”   American presidents should have comparable powers to kings.  But, unlike the royals, they could be held both politically and legally responsible. 

Presidents are subject to elections plus check and balances from other parts of the government.  They may also face “legal punishment,” Hamilton said.  In short, presidents should be king-lite, only kept from full power by being held accountable.

The Constitution allows a president to be both convicted by the Senate and subject to prosecution for the same actions.  This July, the Supreme Court sharply limited presidential exposure to prosecution and retained final control to decide what matters could go to court.  That watered down Hamilton’s promise.

Proven immune to impeachment and conviction and given a free pass by the Supreme Court, Trump wants a clear path, unimpeded by the Constitution and laws, to unchecked action.  To him, the election means winner-take-all. The Democrats struggled to explain what they meant about a “threat to democracy,” but that would be it.

Take the current case. The Senate is supposed to give its “advice and consent” to key presidential appointments. It has sometimes rejected presidential choices.   To reach a decision, it investigates the nominees, holds public hearings, and then votes.  This is part of checks and balances.

If the Senate recesses for more than 10 days, the president may make a “recess appointment.”  The appointee may serve without Senate review until the end of the current Congress, as long as two years.  In practice, the Senate now avoids lengthy absences, so recess appointments have disappeared.

Trump wants the new Senate to take a recess shortly after it begins work in January, too early to justify a break.   He could then install in office for two years people who might turn out otherwise to be unacceptable to the Senate.

Some senators, with Maine Republican Susan Collins among the leaders, say they will insist on the normal confirmation process, perhaps sped up.  The big government split may be institutional not political, between Congress and the president rather than between Republicans and Democrats.

Congress comes ahead of the president in the Constitution to emphasize its role as the lead institution of the federal government.  The world has become more complex, so the president must deal with complicated and fast-moving matters.  However, national policy is supposed to be decided by the people’s representatives.  It’s still the constitutional role of Congress.

If it insists on applying checks and balances, Congress might improve its tattered reputation. Trump could try to totally discredit it or accept some limits, knowing he can count on strong GOP support for most of his policies.

The Connecticut government commissioned a study on what makes governors strong or weak.  It could help in evaluating Trump’s presidential power. 

For his formal powers, he would be rated strong, because he was independently elected, picks his own administration, has veto power and enjoys legislative backing.  But he does not control the budget, and his appointments must be confirmed.

For his personal power, Trump’s overall weak popularity does not undermine his political appeal.  He enjoyed a clear election mandate, which must be seen as a positive report card on his first term.  And he pulled off an historic comeback.  These are attributes of a strong president.

On balance, Trump could end up with that rating.  His reputation as a successful president may depend on how well he can work out an institutional deal with Congress.  He stands to gain more power by cooperating with a GOP Congress than by stirring up unnecessary turf wars.  By asserting itself, Congress could restore some of its lost powers and recover its reputation.

In foreign affairs, presidents have great scope, so Trump may also become a strong leader by adopting popular policies and avoiding unnecessary domestic disputes. Closing the border may well be broadly popular, but not mass deportation.  He could unilaterally end military conflicts by forcing concessions on some countries, but avoid high tariffs that would bring high prices. 

Kipling’s king makes unwise and egotistical use of his power, bringing his downfall.  The people realize they have been misled, rebel and dump their king.  That’s the usual fate of absolute rulers.

Even as he dreams of a third term, Trump must understand that his presidential legacy – strong, weak or wise – is being made now.