Are there holes in the Constitution?

tags: Constitution, James Madison, Trump, separated powers

Michael Klarman is Kirkland & Ellis Professor of Law at Harvard Law School.

As James Madison famously explained in the Federalist No. 51, the practical efficacy of the Constitution’s system of separated powers and checks and balances depends on the assumption that the government’s various institutional actors will have personal incentives to constrain one another’s power (ambition counteracting ambition, as Madison put it). That assumption, however, was grounded in a political context in which political parties did not exist. The rapid development of such parties in the 1790s ensured that the system would not operate precisely as the Founders had anticipated. Specifically, when the president and the majority of the House and Senate come from the same political party, those branches of the national government are more likely to act in tandem than in opposition to one another.

That said, throughout American history, members of Congress hailing from the same party as the president have proved at least occasionally willing to check executive authority. Perhaps most famously, many Republicans (though not a majority on the House Judiciary Committee) supported the impeachment of Republican President Richard Nixon during the Watergate scandal. Today, by contrast, Republican congressional representatives and senators have been “utterly supine” (to quote retiring Arizona Senator Jeff Flake) in their stance toward President Trump’s transgressions of constitutional rules and norms.

Three factors explain why President Nixon could have been impeached in 1974, while President Trump probably cannot be today. First, Democrats dominated both houses of Congress then, while Republicans control both houses today. Second, in the 1970s the two major political parties were ideologically diverse. Conservative Democrats and liberal Republicans, plentiful in the early 1970s, barely exist in Congress today. The most conservative congressional Democrat in 2018 is more liberal than the most liberal Republican. Third, there was no analogue in 1974 to today’s Fox News, which has become essentially a propaganda arm of the Trump administration, performing a function similar to that of government-controlled media in increasingly authoritarian Poland and Hungary — stating untruths, spinning conspiracy theories, and diverting attention from the administration’s malfeasances.

In 1974, most Americans got their facts — and they were facts — from Walter Cronkite, Huntley and Brinkley, or Howard K. Smith. But facts are increasingly out of fashion today. According to opinion polls, a majority of Republicans believe (still) that President Obama was not born in the U.S., that human-caused global climate change is not real, and that Trump would have won the popular vote in the 2016 presidential election had it not been for the illegal ballots cast by 3 to 5 million undocumented immigrants. In the absence of consensus about basic facts, impeachment is not a realistic possibility because not enough Republicans will believe any facts uncovered by Special Counsel Robert Mueller with regard to the Trump campaign’s collusion with Russia or the president’s possible obstruction of that investigation.

Essentially unchecked by a Republican-controlled Congress, Trump has proved willing to push the limits of both constitutional rules and historically grounded norms of the presidency. The president’s continued ownership of the Trump Organization amounts to an almost daily violation of the Constitution’s Foreign Emoluments Clause. Trump’s successful intimidation of National Football League team owners to suppress their players’ protests against racial injustice by kneeling during the playing of the national anthem quite possibly violates the First Amendment’s protection of freedom of speech. So does Trump’s repeated efforts to bully the postmaster general into raising package-delivery rates for Amazon, which is a brazen attempt to retaliate against its CEO, Jeff Bezos, for negative coverage of the administration by The Washington Post, which Bezos independently owns.

A Congress controlled by Republican majorities has done almost nothing to check the president’s transgressive behavior. Instead of defending the special counsel’s investigation, Senate Majority Leader Mitch McConnell has blocked a proposed bill to protect Mueller’s independence in the face of Trump’s repeated threats to fire him. (McConnell’s peculiar logic is that Mueller doesn’t require protection because the president hasn’t tried to fire him yet, though we now know that Trump twice sought to do precisely that.)

House Republicans have been even more complicit with the Trump administration. With the active connivance of Speaker Paul Ryan, the chair of the House Intelligence Committee, Devin Nunes, has repeatedly endeavored to delegitimize the special counsel’s investigation, even to the point of dangerously undermining public confidence in the FBI and the Justice Department. Nunes has fabricated stories about the unauthorized “unmasking” by the Obama Justice Department of American citizens whose words were inadvertently captured on lawful wiretaps, improper national security surveillance of Trump campaign aide Carter Page … and the FBI’s planting of “spies” within the Trump campaign. House Freedom Caucus leaders Mark Meadows and Jim Jordan have threatened to launch impeachment proceedings against Deputy Attorney General Rod Rosenstein for refusing to turn over to Congress Justice Department materials, when doing so may jeopardize the Mueller investigation. One could imagine congressional Republicans’ resuming traditional oversight functions were Trump’s approval ratings within the party to decline from their near-record levels of 85 to 90 percent. Yet it is not clear what additional transgressions by Trump would be necessary to produce that effect. Federal courts have done a better job than Congress thus far of curbing the administration’s unconstitutional actions. Numerous lower courts have struck down the thinly veiled Muslim travel ban, the executive order banning openly transgender individuals from military service, and the executive order threatening “sanctuary cities” with a loss of federal law-enforcement funding.

For three reasons, however, judicial checks on this president are unlikely to prove very significant in the long term. First, the Supreme Court, which has a 5‒4 conservative majority, is unlikely to prove a robust check on a Republican president. Republican justices have already demonstrated in recent years that they think roughly the same way as Republican politicians about voter I.D. laws, state voter purges, the importance of a key provision of the 1965 Voting Rights Act, and the termination of manual vote recounts in presidential elections that potentially threaten the ascension of a Republican candidate to the presidency. They may well feel the same way as Republican politicians about Trump’s assault upon the norms and constitutional rules of democracy.

Second, the lower federal courts currently lean strongly Democratic (because, prior to 2016, Democratic presidents were responsible for nominating federal judges for 16 of the previous 24 years), but that will not be the case much longer. Trump has already appointed more than 10 percent of the federal appeals court judges in the nation, as Senate Republicans have confirmed Trump’s judicial nominations at a record pace. Third and finally, the Supreme Court throughout American history has rarely proved a strong check on executive malfeasance during time of war or terror. The court’s acquiescence in Japanese-American internment during World War II is only one of many illustrations of this point.

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