Gordon L. Weil
“He violates
international law.” “It’s
unconstitutional.” “It’s against the
law.”
That has become
the usual response of opponents of new Trump-Musk public policies. President Trump is accused of actions violating
the laws he dislikes. Federal courts are already dealing with legal challenges
to the Trump political whirlwind. What
are his chances of prevailing?
As for international
law, it grows out of treaties and similar agreements among nations or their commonly
observed customs. Other than losers in
war, countries seldom have international laws imposed on them without their
consent. International law is somewhere between the law of the jungle and
traditional national law.
An agreement
like the U.S.-Canada-Mexico trade treaty or the NATO pact committing the U.S.
to defend others create international law.
If the U.S. moves against other parties’ understandings of those accords,
there’s no international court authorized to decide if it acted lawfully. There’s a slim chance that a complaint might
come before a U.S. court.
Enforcement of
international law is mainly left to the other countries affected. They may
accept a U.S. move, retaliate or simply quit the agreement. Both sides may suffer from any of these actions. If Canada or Mexico cannot afford to oppose
Trump’s tariffs that override the trade accord, they may have to let him amend
it unilaterally.
The U.S. has
historically opposed international courts that could hold it accountable. International law usually means whatever the
American government says it does. If it can’t be held legally accountable, the
greatest risk is that other nations will lose trust in the U.S. If Trump doesn’t care, he could conclude the U.S.
is immune from international law.
Under the
American legal system, his actions can be judged to see if they are in line
with the Constitution or federal law. The
final decision is up to the courts, and the federal government, the states and
the people are supposed to abide by their rulings.
What if the
president and the executive branch use powers not given to them by the
Constitution or Congress or, even more seriously, openly violate the law? In the recent case of Trump v. the United
States, the Supreme Court closed the door on any legal charges against a
president except for a purely personal act.
And it gave itself the power to decide what is purely personal.
That leaves the
only potentially effective way to determine if a president has violated the
Constitution or laws entirely in the hands of the courts and, ultimately, the
Supreme Court. If the Court finds a
violation of law, the president is expected to comply, and government officials
need not follow an illegal order.
Trump has
raised some major matters that will undergo court tests. The Supreme Court previously ruled that
anybody born in the U.S., except children of foreign diplomats, is a citizen,
but Trump has tried to block that rule for the children of illegal residents or
visitors. He may hope that Republican
judicial appointees will back him, but so far that’s not happening.
Trump and Elon
Musk are closing federal agencies, created and funded by Congress, by depleting
or suspending their personnel. The Supreme Court has previously found that
presidents cannot refuse to spend appropriated funds or operate agencies simply
because they disagree with the law.
Vice President JD
Vance, trained as a lawyer, rejects court control. He maintains that judges
should not overturn the “executive’s legitimate power.”
Trump-Musk might
receive a negative court order and simply ignore it. That’s what one federal judge has already
found.
If Trump
succeeds, possibly helped by judges he put on the bench, it’s questionable if
there are any limits on what he may do.
The Court has already moved to overrule Congress and allow the “unitary”
presidency, potentially giving Trump power over the regulatory agencies Congress
created.
Trump and the Supreme
Court limit Congress, originally intended to be the leading federal
institution. The last remaining legal
obstacle would be for Congress to impeach and convict him. With Republican
majorities in both houses, that won’t happen. No president has ever been
convicted.
The president
is trying to transform the government. He
halts the application of some existing laws and governs by executive order, relying
on what he sees as approval by the voters of his campaign promises. If Vance is correct, the courts are political,
not legal, agencies and cannot object.
At stake now is
more than the fate of any agency, program or personnel. If neither Congress nor the Supreme Court limits
the actions of the president, then nothing Trump does would be illegal.
Will the
balance of powers among the three branches of the federal government survive or
have the people chosen to abandon the checks and balances that the Constitution
created in favor of an all-powerful president?
