Trump is above the law
Enforcement is elusive
Gordon L. Weil
He broke international law!
He violated the Constitution!
Angered and frustrated by his actions, some of President
Trump’s critics and political opponents utter these words.
So what?
Nothing changes, largely because Trump firmly believes that
he is smarter than his opponents and acts within the sweeping immunity the Supreme
Court gave him two years ago. His 2024
election victory makes him an all-powerful president.
“Law is a system of rules that are created and enforced
through social or governmental institutions to regulate behavior. It is a fundamental aspect of any civilized
society, providing the framework within which individuals and entities operate,”
says a widely recognized definition.
Trump has said, “I don’t need international law.” When asked what he would rely upon, he answered,
“my own morality, my own mind. It’s the only thing that can stop me.” Does international law apply? “It depends on what your [my] definition of
international law is.”
These days, charges fly that Trump violates international
law when he threatens Iran, writing, “A whole civilization will die tonight,
never to be brought back again.” It is
easy to claim that threat violates international law, but where’s the enforcement? While international courts exist, the U.S.
has not accepted them for most matters.
International law is a collection of formal agreements and
widely accepted customs that are meant to “regulate behavior” among
nations. The formal agreements, usually in
the form of treaties, obligate the countries that have ratified them. The customs are determined by their long-term
use by a great many nations.
The obvious enforcement mechanism is self-interest. For example, if a nation does not want foreign
vessels within 12 miles of its shores, its boats will not venture that close to
the shores of other countries. Behind
that rule is the possibility a coastal state will sink foreign vessels within
the limit, an undesirable choice because of its potentially disastrous
consequences.
That rule may take the form of a treaty, as it has. The U.S.
has not ratified that treaty, but most major countries have. Not the U.S., which, like China, may ignore
it.
In the U.S., a government of laws is replaced by the will of
a single person. The form of government becomes
elective authoritarian.
His warnings about leaving NATO become credible. His threat to erase Iran’s civilization is credible. Quitting an alliance or exercising coercion, both
banned by treaties ratified by the U.S., is not lawful, but he believes he can
do it.
If he pursues this belief, the international order fails, at
least as far as the U.S. is concerned.
Allies will not support the U.S.
Ultimately, other countries could undertake economic retaliation and
refuse to enter other agreements with the U.S.
He provides an incentive for other countries to use the system for their
own relations, eventually isolating the U.S.
Trump believes that the U.S., with the foremost military and
largest economy, can dictate its terms to the world. But new trade agreements being reached among
other countries and refusals by historic allies to fully back the U.S. in Iran
are signs American power is weakening.
Ratified treaties are part of American law that should not be
violated, as are the laws enacted by Congress. Yet Trump has often overridden “the supreme law
of the land” without suffering any consequences in the U.S. He can ignore the law in favor of his own “morality,”
because his compliant party controls Congress and like-thinkers sit in the Supreme
Court majority.
In the absence of court disapproval and congressional
independence, he faces only two formal enforcement tools against unlimited
power.
Two-thirds of both houses can suspend the president upon the
recommendation of the vice president and a cabinet majority. Two-thirds of the
Senate can remove the president from office after impeachment by a House
majority. These are drastic and disruptive
procedures, unlikely to be used. Still,
Trump fears a third impeachment, which is possible.
A congressional majority that will exercise control over presidential
actions would reflect a national popular sentiment that Trump’s discretion must
be limited. Yet it is extremely unlikely
that enough new senators would be elected to provide the two-thirds needed to overcome
a presidential veto.
But either house could reject presidential proposals,
including for spending on military operations.
And an opposition majority could deal with the president, approving presidential
initiatives in return for concessions or modifications. This is governing through compromise, just what
voters supposedly prefer and as the Framers of the Constitution intended.
In the final analysis, unchecked presidential power has become likely and easy. Enforcement of the law to force presidential compliance is complex and difficult. The problem is not about policy, but about process. The solution comes in electing presidents willing and wise enough to submit to the constitutional process.
