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.

 

What the Democrats didn't do

 

Gordon L. Weil

Here’s some news you may have missed this past week.

Though sure to be outvoted by House Republicans, Democrats issued their own comprehensive legislative package, calling it their “Big, Realistic Bill.”  In it, they noted where they have common ground with the GOP on several key aspects of immigration issues.  The bill was backed by all Democrats, while some Republican members said they liked aspects of it.

A group of Democrats announced a new social media outlet called “Truth Now.”  A rotating team of Democratic editors, including some members of Congress, intend, “to keep up a steady flow of proposals, facts and fact-checking.”  Their motto: “There’s nothing as dangerous as fake news.”

Democratic congressional leaders Chuck Schumer and Hakeem Jeffries announced that their legislative work left them insufficient time to serve as the principal Democratic spokespersons.  Together with the Democratic National Committee, they will name a single spokesperson to hold daily press briefings for the White House and congressional press corps.

The DNC plans to create “The Democratic Forum,” a summit meeting later this year to include congressional leaders, governors, state party representatives and others to identify and develop unified policy positions for use across the country in next year’s elections.  The DNC chair said that the first step to victory is building unity around a creative set of proposals.

You missed all that, right? 

Of course, that’s because none of it happened. 

Instead, the Democrats chose to stick to the same failed policy they have pursued since 2016 – Trump will self-destruct, and they will be left standing to pursue great policies like those that brought them success under FDR.  They will look for attractive candidates to relentlessly attack Trump policies.

In short, the Democrats expect to win by waiting for Trump to lose, thanks to his obviously divisive policies.  They fail to notice that they are no more popular than Trump and his loyal Republican GOP.  

The Democrats are poor communicators.  During Joe Biden’s term, a week would go by without a word from him, as aging kept him out of the public eye.  Filling the Dems’ vacuum, a relentless Trump issues pronouncements on his own social media, which he has made his main tool for governing.

The Democrats need simple messages that focus on the concerns of most Americans, regardless of party.   Scoring points in congressional hearings doesn’t reach most people out here.  This is not an academic debate. This is politics, and politics today is war.

Democratic leadership should define party policy.  Here are my ideas on the issues they should address simply and directly.

The debt.  Too much and growing.  It could devour the budget.  Who will pay and when?

Taxes. We ask for a lot from government, but don’t pay for it.  With much debt, we must turn to taxes.  A fair system means tax increases, not decreases, for the wealthiest.

Your rights. The Bill of Rights is meant to protect people in the U.S. from the government. If government strips rights from anybody, it comes closer to being able to do the same thing to you.

Budget. All agree that there’s waste and marginal programs.  But today’s slash and burn kills innocent victims.  The Democrats should demand each department meet a spending target by setting priorities.  The president and Congress would have to sign off.  

Less fortunate neighbors.  Our market system inevitably leaves some people behind.  Most Americans are compassionate and want to help the poor and disadvantaged to participate in the economy and lead decent lives.  That’s nothing new.   Social Security, Medicare and Medicaid are not political playthings; they have become part of the fabric of America.

Immigration.  This great country should be able to control the flow of immigrants, who can gain their freedom and boost our economy.  While illegal immigrants who are criminals should be deported, mass deportation will deprive the country of loyal residents who make real contributions.

Biden.  The Democrats are moving on from the Biden years.  His policies do not always meet the needs of today.  We respect the past, but our eyes are on the future.

Economy.  Inflation was up during the Covid recovery, but it’s no longer high.  We must keep prices stable, while allowing the work force to earn more as it serves a more advanced economy.  That involves issues ranging from where and how long people work to direct aid to improve skills.

Of course, the Democrats disagree with the Republicans on almost all these issues. But they should spend less time attacking the GOP and more on making their own case.

This approach raises risks for future Democratic electoral success.  But their current policy of pure negativity may continue it on the path to failure.  Given the dire situation of American politics, it’s time to take risks.

 

U.S. foreign policy failing

 

Gordon L. Weil

Donald Trump set his highest priority foreign policy objectives: reducing or eliminating the U.S. trade deficit, ending the war between Russia and Ukraine and resolving the conflict between Israel and the Palestinians in Gaza.

He promised early results and took swift action once in office.  He has failed, thus far at least, on all three.

On trade, Trump misused emergency legislation to impose high tariffs to virtually all countries for trade in goods.  “I’m using trade to settle scores and to make peace,” he said.  Settling scores means eliminating unfavorable trade balances, which he claims were intentionally caused by other countries.  After that, Trump’s version of peace would presumably prevail.

He believed he could settle scores painlessly. Foreign suppliers would absorb the impact of the tariffs. They would pay the tariffs, increasing foreign revenues flowing to the U.S. Treasury.  If they raised their prices to cover the tariffs, higher cost American manufacturers could regain market share. 

He did not count on retaliation and resistance from others.   He resisted accepting that end-use customers would pay for the tariffs. He ignored the effect of retaliation on essential American imports. And he did not take account of the impact of his constant tariff changes on corporate investing and consumer confidence.

But retaliation came from China and Canada, both providers of essential imports. Retail prices began to increase.  The stock market sank as tariffs rose.  Partners began to diversify their trade away from the U.S., losing confidence in the reliability of American policy.  The dollar as the world standard wobbled.  Trump backed off.

As for Ukraine, Trump had boasted that he could settle the conflict in a day.  That would have to mean the full and immediate surrender of Ukraine to the Russians, resulting from a cutoff of U.S. support.

Trump thinks little of Ukraine. His first impeachment was caused by his attempt to force Ukraine President Zelenskyy to dig up evidence against Hunter Biden.  He knew nothing of the centuries-old effort by Russia to suppress Ukraine, even going so far as starvation, or of Putin’s failure to keep earlier “peace” agreements.

He believed that Russia would ultimately overpower Ukraine, which should, in effect, surrender to prevent the unnecessary loss of life.  But Ukraine and powerful European allies understood that Putin would not respect a settlement and was trying to relaunch Soviet-style domination. 

With or without the U.S., Ukraine would resist no matter the cost.  When Trump realized he was dealing with two, not one, strong-willed forces, he essentially abandoned his peacemaking, potentially leaving the defense of Ukraine to itself and its European allies.

After the Hamas attack on Israel, Trump fully backed the Israeli response.  But Israel gradually went beyond a proportional response.  It seeks to take over Gaza, the Hamas home base, on the way to complete domination of Palestine.  Trump offered the fantastic prospect of turning the territory into an American seaside resort after expelling the Palestinians.

As the harshness of Israeli actions became apparent, sympathy grew for the target Arab populations.  Critics of Israeli policy toward the Palestinians could find themselves labelled as antisemitic by Israeli Prime Minister Netanyahu and Trump’s supporters. 

Netanyahu stepped up his inhumane pressure on Gaza, eventually starving many there.  Israel’s international support faded. Even Trump responded to the starvation and increased both his pressure on Israel and his distance from it.  Some Israelis warned the nation could become an international pariah. 

Trump had bet on Israel, but slowly came to understand the advantages of improved links with Arab states and the disadvantages of giving Netanyahu unconditional support.  His peacemaking on behalf of Israel turned into dealmaking with the Arab nations, with Israel excluded.

Trump’s policies have failed.  Tariffs could not be drastically raised.  Ukraine and Russia would fight on.  Israel would prolong the Gaza War.

Trump may yet turn all this around.

He should roll back his across-the-board effort to “settle scores” and negotiate individual accords with major trading partners.  Top priority should go to Mexico, Canada and, if possible, China. Each accord must be objectively screened for its potential domestic impact, and deficits must be accepted as a fact of life.

On Ukraine, the U.S. should join with Europe to tighten sanctions on Russia and let Putin know that Ukraine will have long-term support until a ceasefire and negotiations without any preconditions take place.

Joining also with the Europeans, the U.S. should make clear that a two-state Israel-Palestine solution must be adopted, no matter how difficult that would be.  The rebuilding of Gaza and its society should begin under a newly elected Palestinian Authority.  The U.S, could be the economic partner of Israel and Arab countries in creating a truly regional economy.

These may seem like unrealistically lofty objectives.   But Trump has the potential to surprise and influence the world by changing course. 

Trump won’t win Nobel Prize

 

Gordon L. Weil

President Trump works hard at trying to earn the label of peacemaker.  He has his eyes on the Prize -- the Nobel Peace Prize.  He won’t win it.

Though he may charge that the Peace Prize is worthless unless he wins it or that the vote was “stolen,” some factors influencing the award are not aimed at him personally, and he seems not to understand them.  They make it impossible for him to win.

The selection is made by a special Norwegian committee from a list of nominees proposed by hundreds of people worldwide.  The five-member committee is appointed by the Norwegian parliament. To ensure that it cannot be seen as representing the country’s policies, it does not include any public office holders.

Alfred Nobel set idealistic standards for the Peace Prize and the Peace Prize committee continues to honor them.  Its selections often are meant to promote his version of peace and not only as a reward for a winner’s past peacemaking.

For example, the committee saw the award to Barack Obama, soon after he became president, as a sign of its hope for change in the world.  It wanted to encourage what it saw as his commitment to nuclear disarmament and fewer barriers to international cooperation.  It did not link the award to his historic election.

Fifty years ago, I wrote an article asserting that all Nobel Prizes, including the science awards, are political.  They are even more obviously political now. The committees balance regions and countries, favor some rivals over others and have their own leanings.  They often react slowly and follow other awards, especially in the sciences.

Why will Trump fail?

His view of peacemaking seems to consist of getting two sides in a controversy to stop shooting at one another.  He does not necessarily require that they agree on a settlement with lasting effect. 

Nobels don’t go for this minimal result.  The agreement between Egypt and Israel continues, despite calamitous events in the Middle East.  An agreement between Israel and Hamas or between Ukraine and Russia would have to be more than a ceasefire.  Each would involve more than real estate, but would touch on national sovereignty and survival.  That’s not quick or easy to do.

Even if he were lauded for gaining a ceasefire, Nobel Peace Prizes go to the two sides making an agreement, not the mediator who may have shepherded the deal.  George Mitchell got no reward for the Good Friday agreement in Northern Island.  Although he won later for other efforts, Jimmy Carter was not recognized for the Israel-Egypt accord.

The Peace Prize goes more often to people exercising “soft power” than those using “hard power.”  Greater emphasis is placed on negotiations and shared values than on the use of force to reach an agreement. 

The Nobel “art of the deal” involves negotiations and voluntary compromise.  It may entail political risk for the parties and even for the mediator.  By itself, Trump’s coercive Oval Office meeting with Volodymyr Zelenskyy, Ukraine’s president, may have torpedoed his chances for the Prize.

Nobody is perfect, so it’s likely that any Prize recipient has defects.  But the committee seeks to draw attention to admirable people like Martin Luther King, Jr., Nelson Mandela or George Marshall.  Here, Trump’s personal prejudices, his retaliation against opponents, and his attacks on universities plus his disrespect for the law, all count against him.

While the Nobel Peace Prize Committee recognizes that its awards may be controversial, its choices favor winners likely to gain broad international support.  Trump’s aggressiveness in trade policy and attitudes toward Canada and Greenland, part of Denmark, a fellow Scandinavian nation, do not make him an obvious choice for the Norwegian committee. 

In fairness, his approach could bring positive results, but they would fall far short of Nobel Prize standards.  His hard power approach has recently sent a message to Israel, which continues to destroy Gaza. 

His deal with the Yemini Houthis about the release of an American hostage, his business-oriented trip to Arab countries while skipping Israel, and his negotiations with Iran over a nuclear deal are all moves that could put pressure on Israel.  The outcome of his efforts might replace the attempted Israeli military solution to Middle East relations with regional economic cooperation, just as happened in Europe, though he may miss the similarity.

At the first sign of success, he is likely to assert his claim to the unreachable Prize.  He may not understand why Barack Obama or Al Gore or Jimmy Carter or many unknown people have won the award.  It is this very lack of understanding of the politics of hope that will cost him the Prize.

 

 

 

Clouds over Trump's honeymoon; the Qatar gift

 

Gordon L. Weil

Donald Trump’s first 100 days as president, a political honeymoon, were a breeding ground for controversy.

You either believed that anything he did must be right or anything he did must be wrong or went along for the ride, hoping for the best and fearing the worst.  Of course, some people are a bit more selective, usually ending up saying they like what he is doing, but worry about or plainly dislike his methods.

The result was what may be the most glorious presidential honeymoon ever, based on his assertion that his policies had a single objective – the triumph of MAGA.   If he intended to make America better, he deserved his chance. 

While his policies might succeed, each contained elements of its own failure.

On immigration, where he had promised not only to stop illegal entries but also to purge the country of non-naturalized foreigners, he picked low hanging fruit.  If a foreign student could easily be picked up off the street or an immigrant could be nailed at a citizenship interview, their expulsion would add to the numbers he wanted to achieve.

Clearly illegal entrants should be eligible for expulsion when apprehended.  Because they had violated the immigration law, they could be promptly tossed out, he thinks.  The constitutional right to due process, available to virtually all people, should be denied in such cases, his aides assert. They’re wrong; the president is not above the law, however inconvenient.

Tapping on the sentiment that government was both too big and too unresponsive, Trump loosed Elon Musk on it.  Reductions were not done surgically, but by a bulldozer.  The victims included science, foreign aid, public health and the poor.  The savings are relatively small, but grossly inflated for the media, and were done without following legal procedures.

Both immigration and government cuts face a myriad of court challenges.  Trump may count on courts stacked with conservatives to approve his extraordinary assertion of presidential powers.  He may face a constitutional conflict with judges.

On trade, he claimed that huge tariff increases should produce stunning results:  reduced imports, increased U.S. manufacturing and jobs, no price increases and acquiescence by America’s trading partners and allies.  He seems to have been right on imports, but possibly on no other assertion.

To be sure, he will have some wins from his drastic government cuts and his tax reductions and from backing off somewhat on tariffs.  But many of his moves harm constituencies he needed to win, and the question is how they will react in next year’s congressional elections.

However controversial, his ability to act by presidential decree should continue, at least until the Supreme Court limits his discretion.  Whether the Court does so, remains uncertain.

His free pass has been due to the almost total loyalty of congressional Republicans.  They seem to accept his electoral win across the country as a mandate for the kind of presidential power he wields.  They may fear his retaliation or agree with the trend toward authoritarian rule.  To succeed, he must be able to count on the submissiveness of the GOP.

Significantly, he may have to begin worrying about them.  For the first time, they blocked him.  His nominee for U.S. Attorney in D.C. failed because a single GOP senator opposed the appointment and was not overridden by the Majority Leader, who could have allowed a floor vote.

But one key factor may make Trump politically vulnerable.  More than any president before him, perhaps more than all of them together, Trump uses the presidency for personal enrichment.

He proposes to accept a $400 million free airplane from Qatar for use as Air Force One.  He believes he deserves more luxury, and he impatiently awaits Boeing’s delayed American made model.  Later, his administration would transfer the aircraft to his presidential library, so he might continue using it.  In short, Qatar is giving him a personal gift.

The violation of the constitutional ban on accepting such gifts is hard to ignore.  Qatar is buying influence.  He may count on the possibility of no judicial remedy beyond impeachment and conviction.

To make the plane electronically secure would cost taxpayers hundreds of millions.  And what about the duplicate plane that is needed to foil potential attackers and serve as a backup?  Boeing is contracted for two planes.

Add to this other Trump family profit-making activities. The promotion of his bitcoin business could give foreign interests access to him and perhaps a guided White House visit. What’s in it for the U.S.?  Or his sons promoting his businesses in Qatar and other places where he might trade U.S. policy for lucrative favors?

If the Democrats become more adept campaigners than they have been, they could make an issue of this potential corruption.  Even if they like his policies, the GOP might have a hard time justifying Trump’s self-enrichment, and some have already expressed serious concern. 

Meanwhile, public opinion polls reveal that his first 100 days were a political flop, comparing badly with his predecessors’ early showings.  He may be losing political clout, perhaps providing little help to the GOP in next year’s elections.

To paraphrase Churchill, this may not be the end of his presidential honeymoon or even the beginning of the end, but it could be the end of the beginning.

Trump's trade policy fades; tariffs come up short

 

Gordon L. Weil

American exports should be greater than American imports worldwide and for every country.  That’s the essence of President Trump’s tariff policy. 

To the extent that any country has a positive trade balance with the U.S., it is “robbing” the U.S.  To fix the imbalance, the U.S. now imposes tariffs or threatens to use them on imports to make them so expensive that American producers, with higher costs, can compete.

Even taking this policy at its face value, it is a failure.

Trump has squeezed other countries to force them to the negotiating table where they should make concessions to get him to back off the tariffs.  The signs are that he will achieve a lot less than he set out to get.  And neither side may be better off.

Two talks last week revealed that his policy was not working.  Meeting with Canadian Prime Minister Mark Carney, Trump said that the U.S. did not need his country’s exports, asserting that America could be self-sufficient.  Carney, an experienced negotiator, avoided debating the point, but merely noted that Canada is the biggest customer in the world for U.S. exports.

Trump is so focused on the trade balance in goods that he ignored exports and the favorable U.S. balance in services or his country’s reliance on Canadian oil, uranium and other essential goods. He failed to recognize that many products, like automobiles, are truly international, making it impossible to label them as coming from a single source.

After Trump again grandstanded about his desire to make Canada the 51st state and Carney’s understandable rejection, the two sides retired to begin closed, substantive talks going beyond scoring on one another.  In effect, Trump recognized that he needs a deal, which Carney already knew.

The second event was the announcement of a trade deal with the U.K.  Ever since Brexit, the Brits have sought a comprehensive trade arrangement, possibly a free trade deal, with the U.S., to compensate somewhat for losing Europe.  But the U.S. has had a favorable trade balance with Britain, giving it no reason to make a major deal.

That changed.  Trump needed an early trade deal to justify his tariff policy.  British Prime Minister Keir Starmer needed an accord to show the U.K. still has a special relationship with the U.S., and that the Labour Party could bring home a trade deal responding to some of Britain’s hopes.  Both leaders congratulated themselves on making a long sought after deal.

That may have been good politics for each of them, but it wasn’t true.  The deal removed some of the trade measures that Trump had applied to the U.K. without justification, but the Financial Times, a leading British newspaper, noted that it still left the U.K. worse off than it had been before Trump returned to office.

A deal with China really could matter, and both sides need it.  Trump looked anxious in claiming prematurely that talks with Beijing were under way, when at best contacts took place about starting talks.  At last, they have begun.  With China, the president’s tariff policy might produce results, though whether China keeps its promises would remain in doubt.

Overall, the Trump tariff policy is failing.  Originally focused solely on imports of goods, the policy missed the effects on domestic prices, access to essential imports, American exports as other countries retaliated, and the trade-stopping effects of astronomic tariff rates.  He now seems to begin to understand the implications of his one-note trade policy.

But his performance in talks with Carney and Starmer suggests he can’t adjust his demands.  Better qualified negotiators try to save the appearance of his claims, while making realistic arrangements.  One result is that the British deal is not a comprehensive pact, but simply covers specific items, with many details left to be completed.

Not only is his high tariff policy fading into face-saving pacts limited to a few products, but Trump himself seems to be fading.  What should have been said about Joe Biden as his term wore on, seems to be increasingly true for Trump. He restates broad themes, but lacks the energy or grasp of details to go further.  He leaves that to others.

When asked what the Declaration of Independence, posted on his office wall meant to him, he said it was a declaration about “unity and love” when it was about rebellion and anger.  When describing the U.K. trade deal, he read from prepared written remarks, possibly for the first time, showing no sign of understanding the deal.

He continues to ring the chimes for his key policies: mass deportation of illegal immigrants, stopping other countries from “robbing” the U.S., and slashing the federal government.  The question arises if he is capable of making these policies work as they face growing opposition.

 

 

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.