Is US Constitution, like UN, 'empty words'?

 

Gordon L. Weil

In his speech at the United Nations General Assembly, President Trump asserted that the U.N. was “empty words.”  In an important sense, he was right.

When it was founded 80 years ago, the U.N. was supposed to be the world’s peacemaker and peacekeeper.  At its summit were placed five nations – U.S., Soviet Union, U.K., France and China.  They were the principal victors in World War II, having stamped out aggression and war. United above all by their experience, they would protect against more such conflicts.

It took less than a year for the hoped-for unified commitment of the five to fall apart. An “Iron Curtain” fell across Europe. In the East, the Soviet Union pursued historic Russian imperial policies and forced nations under Communist rule, managed in Moscow.  

Under the U.N., all five were required to act unanimously; after 1946, that became increasingly impossible.  The U.N. action against North Korea’s invasion of South Korea in 1951 was only possible because the Soviet Union was boycotting the U.N.  Over time, the U.N. played only limited roles in peacekeeping, turning its attention to mitigating the causes of conflict.

In this series of events, the U.N. Charter was not violated. It was applied, but in a manner that left it failing to pursue its original intent. Evolving beyond the terms and intentions of a founding document is perhaps inevitable as people and events change, and sometimes that can happen quickly, as with the U.N.

What has happened to the world organization is now happening in the United States.

The American system of government, initiated in the historic and innovative Constitution, was based on the common commitment of a group of leaders who shared much the same background and experience.  They expected that the system would evolve, as it must under such a brief rulebook, but would maintain the values they tried to build into the American republic.

Among the most basic of their concerns were the excessive concentration of power in a central government and in the chief executive of that government.  They rejected British royal rule and all power over the 13 colonies being exercised by London.  They also sought to protect people from oppressive rule, immune from legal review.

While the government could adopt policies required by the times, what has become a catch phrase – “a system of checks and balances” – was the byword for how the government could be kept from concentrating excess power.

The intentions of the Framers have been eroded somewhat by successive generations of national leaders of major political parties, especially in the White House and Congress.  However, in many basic respects, the Constitution has functioned as planned and in line with shared understandings.

Until now.

The Constitution risks becoming “empty words.”  The intended limitations on the power of the chief executive are being dismantled, and the effect spreads across American life, public and private.

When the words “freedom of the press” are open to unprecedented, partisan interpretation, they become “empty words.”

There appear to be two principal causes for this historic turn.  The U.S. Supreme Court sees the president as having almost unlimited executive power.  The result is that the balance has shifted from Congress to the president, thanks to the judgment of the Court.  This transfer is possible in part because many laws leave the president more discretion than has proved to be wise.

The other cause is Donald Trump’s view of his election. Not only did his win, coupled with the support of his party’s congressional majority, give him almost absolute control over all parts of federal government action, he believes, but even the power to reach beyond public institutions, using the immense government power, to influence business and personal behavior.

He abolishes agencies created and funded by law.  He fires independent regulators to replace them with his allies.  He directs prosecutors to pursue his past opponents, whom he readily says he hates.  He carries out acts of war on the high seas without the knowledge of Congress.  He uses the armed forces as domestic police.

And more.  He uses his office to enrich himself and his family to an overt and extensive degree not reached by his predecessors. He seeks to impose a set of moral values on many who have the right to their own values and to the exercise of their rights.

All of this both sets dangerous precedents for the future of the American system and has clearly changed the nation’s place in the world.

Speakers at the General Assembly spoke of the need to end the one-nation veto, now frequently used by the U.S.  It’s doubtful if that is possible without U.S. agreement.

Similarly, perhaps the Constitution should be amended.  It’s doubtful that the required 38 states would agree.

To recalibrate how the Constitution is applied requires doing just as Trump has done.  Win elections, control Congress, and add some balance to the Court.

For the present, an Iron Curtain has fallen across America. 

But we may misunderstand the two sides, so next time, I’ll take a look.

Constitutional test looms at Supreme Court

 

Gordon L. Weil

On Inauguration Day, President Trump issued a torrent of executive orders, aimed at reshaping the federal government; many more would follow.   Facing a flood of bad news, people affected took Trump to court.

Those affected believed they would soon gain relief from what they claimed were his illegal or unconstitutional acts.  But his supporters felt confident that, despite initial adverse rulings from lower courts they labeled as liberal, a friendlier Supreme Court would endorse his moves.

Faced with a steady flow of Trump’s executive orders, dockets expanded in every part of the country.  Federal district and appellate courts have worked nights and weekends to keep up with the cases. 

Meanwhile, the Supreme Court, enjoying its usual three-month break, limited itself to a few procedural orders, supporting Trump, while putting off decisions.  It hears its first case on October 6.

In July 2024, the Supreme Court ruled that the president has almost unlimited executive powers, free from control by Congress or the Court.  The courts also would have “no power” to control the president.   Presumably, the courts could decide if the president enjoyed such a grant of full powers under the Constitution.

In a variety of ways, all the cases making their way to the Court will test the scope of the presidential powers that it has recognized.

Until now, Trump has asserted that the powers he exercises fall under the independent and exclusive power of the president.  In many decisions of challenges to his orders, lower federal courts have found that he violated the Constitution or laws.  They have suspended his actions, but the Supreme Court overruled them, allowing him to act for the time being.

The outcome of the legal tests between Trump and his challengers is not clear.  Some appellate decisions have been by split votes, suggesting the Supreme Court majority might see merit in either side. If the justices act based on the party of the president who appointed them, Trump could prevail.

Though many cases are pending, most fall into a few key areas.

The Constitution itself is in play.  Trump claims that the Fourteenth Amendment right to citizenship at birth, treated as absolute since it was adopted in 1868, does not apply to the children of illegal immigrants.  If the Court agrees that birthright citizenship may be conditional, the right could undergo great change.

Trump also seeks to deny due process rights to people before they are expelled from the country.  The Constitution applies to a “person” not only a “citizen,” but Trump discerns a distinction with which no court has yet agreed.

How far does the executive power extend?  The Court has already upended independent regulatory agencies by allowing the president to fire their members.  Will it allow him to fire them at will under DOGE, ignoring century-old civil service laws that protect government employees?

While the law is supposed to prevent his withholding public spending previously mandated and authorized by Congress, Trump has virtually eliminated entire agencies and their employees.  He ended programs created by law with no opposition from the Republican Congress.  If his powers extend that far, what remains of the congressional “power of the purse?”  

Trump backers claim his election victory gives him the right to implement his agenda without congressional approval.  He has removed women and Blacks from office in the belief that they had received favorable treatment.   He penalizes states and universities, stripping federal funding if they have programs to ensure equal opportunity, branding them as “woke.”

He uses the Title IX prohibition banning discrimination against women in athletics to keep trans women from women’s competitions.  Is this a matter he can decide or is it up to the states or Congress?   Maine’s Gov. Mills has asserted the state’s right in the face of retaliatory funding cuts.

Despite both history and a long-standing law, Trump deploys the military to engage in law enforcement activities meant to be under state jurisdiction.  He has sought to transform world trade by imposing heavy new tariffs using or misusing emergency powers granted by Congress.  Two courts have decided that he exceeded his authority.

Ultimately, such cases may come to the Supreme Court when it comes back to Washington next month.  The justices may take their time in deciding the many cases making their way to the Court.  A slow pace, like its recent procedural rulings in his favor, would simply allow his decisions to achieve their purposes before the Court rules on their legality.

If the Court affirms its view of virtually unlimited presidential power, as is possible, it could nullify the balance of powers in the Constitution.  If so, the Constitution itself and the Court’s own future will become hotly contested political issues.   The ultimate court will then be the voters.

In short, it will soon be crunch time for the Constitution.

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.

 

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.