William B. Turner
Perhaps the single most damning revelation in the new book from inside the Trump White House that has everyone talking just now is that an aide tried to explain the Constitution to the Donald, but gave up in despair.
It is a paradoxical concept, but one that any reasonably bright undergraduate can grasp: the Constitution is an enabling constraint. Human life is actually full of them. One great example is language. It enables us to communicate with each other, but it constrains what we can say. If a person who speaks only Chinese tries to talk to someone who speaks only French, they won’t achieve much communication.
If someone who is a loyal Trump supporter tries to talk to someone whohas use of her/his reason, they won’t achieve much communication.
The presidency exists only because of the Constitution, which defines the office. The Constitution is a flawed document. It is a human invention. All human inventions are flawed. It accepts the existence of slavery, or it did in the original. With the adoption of the Thirteenth Amendment, we no longer permit slavery in the United States. The men (!) who wrote the Constitution had grave concerns about the continued existence of the new nation they had fought to create. The Articles of Confederation, which preceded the Constitution, were not getting the job done, so they wrote the Constitution, hoping to strike a delicate balance by creating a new central government that is stronger than its predecessor, but not too strong.
Balance is a key concept in the Constitution and in the thinking of the Founders. The Donald is unbalanced. He does not seem to understand the concept.
An enabling constraint is a form of inherent balance, we might say. It balances enabling against constraint.
Part of the balance in the Constitution is the balancing of the various powers of government that the document assigns to different branches. When he speaks to members of Congress as if they work for him, the Donald betrays a profound ignorance of this simple point. Well informed observers often refer to the two as “co-equal” branches of government. This goes for the judiciary as well. All three are equals, each with its sphere of responsibilities. Congress, as the national legislature, enacts laws. The President, as the executive, enforces the laws. Judges resolve disputes about the meaning of laws.
Congress does not work for the president. Happily, members of Congress tend to be jealous of their role in the federal government and do not like having the president take any actions that they perceive as infringing on that role. As both Jimmy Carter and Bill Clinton learned to their chagrin, writing a flawless bill at the White House and sending it to Congress is not a good way to get the bill passed. Members of Congress like to have a role in writing anything they pass.
The president cannot act without laws to enforce. The President may veto legislation, but Congress may override that veto with two-thirds majority in both Houses. As Trump has learned (?) recently, federal judges may stop the President by finding that his actions violate the Constitution.
Giving powers of government to branches besides the executive is an inherent constraint on the President that is built into the Constitution.
Article II of the Constitution defines the executive branch. It starts out, “The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows[.]” So this already includes a constraint: the term of four years. We have held an election for president every four years since 1792. Even if you already have the job, you still have to run again after your four year term is up.
George Washington ran for a second term in 1792. Abraham Lincoln ran for a second term in 1864. Teddy Roosevelt ran for a second term in Franklin Roosevelt ran for a second term in 1936. He ran for a third term in 1940 and a fourth term in 1944, the only president to serve more than two terms. We then amended the Constitution so that no president may serve more than two terms. Dwight Eisenhower ran for asecond term in 1956. Every president’s term lasts only four years. This is not something the Donald can change without amending the Constitution. He’ll have to run again in 2020. If he lasts that long.
Article I, section 8 of the Constitution is the longest section. It contains the list of powers expressly granted to Congress.
Article II, section 2, which contains the powers expressly granted to the President, is much shorter. It reads:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Both because of his treaty making power, and because of the practical reality that no nation can or should have multiple people representing it to other nations, and because of the enormous importance of foreign policy since World War II, the President’s powers have grown enormously since 1945. After Nixon left office, one observer wrote a book called The Imperial Presidency. There was concern that the President had become too powerful.
Republicans typically claim to like a powerful president – when the President is a Republican. When Obama stated flatly that he would use the power of his office to achieve his policy goals without the help of a recalcitrant Congress, they screamed about how he was becoming a dictator and trying to exercise royal powers.
It’s kind of funny that, in good Trump fashion, the Donald cannot figure out how to use the enormous powers of the office effectively. Several observers have noted how Nixonian the Donald is in his approach to the presidency – trying to persuade the FBI to go easy on his subordinates who may have violated the law, denouncing the press, expressing paranoia about liberal federal employees undermining his presidency, acting like a paranoid crazy person, etc. One important difference is that Nixon was all about foreign policy. He was a dedicated cold warrior. He gave Democrats in Congress a lot of what they wanted – signing bills to create the EPA and OSHA – so he could have a free hand in foreign policy.
The Donald didn’t think it through. The Donald had zero experience in government. The Donald knows nothing about foreign policy. The Donald has no idea what he wants to do with the presidency, so he adopts any bad Republican idea that comes down the pike, except for the few bad ideas of his own he used to win the election.
The Donald doesn’t understand the Constitution.
The good news is that it doesn’t matter at the end of the day. Lots of other people – you, me, your third cousin’s dog – understand the Constitution and we have the power to enforce our understanding on the Donald.
Article II, section 4 states this very important constraint, not just on the President, but on all federal officials: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
The Twenty-Fifth Amendment also allows Vice President Pence and a majority of cabinet officers to declare that Trump is unfit and remove from him the powers of the presidency, making Pence “acting President.”
The Donald’s inability to understand the Constitution is a specific example of his larger solipsism. He doesn’t grasp that other people have different perspectives and opinions and that they deserve respect. He thinks everyone should automatically adopt whatever stupid position he has adopted. Since he runs on ego, he gets upset if anyone disagrees with him. Everything is personal with the Donald.
But the Constitution doesn’t care. It grants power to other branches of government that they may use to limit the Donald.
All we have to do is persuade them to do so.