How Trump Threatens the Constitution

The framers devised a system of checks and balances to save us from someone just like him.

In the nearly three years Donald Trump has occupied the White House, he has been busily installing the Imperial Presidency that writers have been warning us about for a generation, precipitating a fundamental crisis going well beyond the question of whether he has engaged in bribery, abuse of power, obstruction of justice, or committed other “high crimes and misdemeanors.” The most serious offense committed by President Trump is not among the crimes for which he was impeached.

Since taking office, he has been seizing powers for himself that are assigned exclusively to the Legislative Branch under Article I of the Constitution. These exclusive powers include taxing; borrowing and spending; carrying out acts of war; regulating domestic and international commerce; and others. As he has infringed on these powers, Trump has greatly accelerated a trend that has been underway—but little noticed—for the past half-century: the erosion of the checks and balances between the executive and legislative branches essential to the Constitutional structure.

The seizure of legislative authority by the Executive Branch has undermined the guardrails the founding fathers designed to protect us from the accumulation of tyrannical authority in the hands of the Chief Executive. That was the fundamental feature of the “republic—if you can keep it” established at the Constitutional Convention in 1787.

Trump is the crest of a long-term trend, augmented in recent years by the bitter ideological deadlock that has gripped Washington for the past 30 years. The question now is: how do we stop and reverse this trend? The task belongs either to the voters this November, or more likely, to the biggest governmental losers, members of Congress. After all, if Congress fails to defend its Constitutional powers, who will?

Trump has not been alone in accelerating this trend. Hamstrung by the gridlock that left his legislative proposals “dead on arrival” after his first two years as president, Obama resorted increasingly in the following six years to executive orders to achieve his objectives. Republicans objected that he was exceeding his powers, and some of Obama’s actions were successfully challenged in the courts. But Obama’s appointees to key regulatory agencies continued to pursue policies he supported. Given the deference long afforded to the expertise of government regulatory bodies, many of those policies took effect.

Obama’s regulatory successes were short-lived, however. Far more than most presidents of opposing parties, Trump has been eager to undo whatever Obama did. Even though he enjoyed majority support in Congress in his first two years, Trump often chose to issue his own executive orders to reverse those signed by Obama (Republicans, who complained loudly about Obama’s executive orders, fell silent), and accomplished very little of this regulatory agenda legislatively. But Trump appointed leaders of numerous regulatory bodies and tasked them with modifying or abolishing rules put in place by their predecessors. Several of Trump’s nominees were avowed enemies of the agencies they were chosen to head.

Alarmingly, a frequent feature of Trump’s presidency has been his increasing tendency to name political appointees as “acting” heads of departments and agencies after their predecessors depart. As of this writing, the heads of the Office of Management and Budget, the Labor Department, the Homeland Security Department, and the Director of National Intelligence are all serving in an acting capacity and were not confirmed by the Senate. So, too, are the heads of at least half a dozen other important agencies. In taking this approach, Trump has been able to avoid subjecting his chosen operatives to the Senate’s “advise-and-consent” authority.

What’s more, under GOP control, the Senate has been unwilling to reassert its prerogatives by setting a firm limit on the interim period during which “acting chiefs” can continue to serve. As a consequence, political appointees responsible for many governmental functions are answerable only to the White House.

Trump has likewise disregarded the power granted exclusively to the Legislative Branch to determine by law what funds “shall be drawn from the treasury” and for what purpose. Violation of that provision is at the crux of one of the articles of impeachment dealing with the alleged “bribery attempt” of withholding funds Congress had appropriated for Ukrainian defense against Russian incursion.

Although it has received less attention, the same idea also applies in principle to Trump’s taking funds set aside for projects on U.S. military bases in the U.S. and Europe to instead build his promised wall on the Mexican border. The latter action seems especially egregious in light of Congress’s explicit refusal on more than one occasion to approve construction of that wall.

Even more disconcerting, President Trump has instructed government officials to ignore subpoenas from committees of the House of Representatives requiring testimony and the production of data. He has laid claim to “absolute immunity” for himself as well as for present and former members of his staff and has instructed members of agencies outside the White House not to testify. That behavior led to the other article of impeachment advanced in the House—obstruction of Congress.

While Trump has not quite resorted to blocking testimony on all subjects, he appears determined to prevent Congress from inquiring into any matter that might result in bad publicity, further proof of misconduct, or additional impeachment charges. It remains to be seen how the Supreme Court will rule on Trump’s assertion of unlimited authority to determine who must testify before Congress and what information must be surrendered.

Congress has also all but lost its exclusive power “to declare war.” Over the last two decades, war and foreign policy have essentially become the sole province of the Executive Branch. In authorizing the recent assassination of Iranian General Qassem Soleimani, the administration chose to notify Russia, Israel, and Republican leaders in the House and Senate. Notably, it excluded the bipartisan “Gang of Eight.”

Since approving the Gulf of Tonkin resolution, which greatly expanded the ill-starred Vietnam War, and voting to invade Iraq based on highly questionable evidence presented by the Bush-Cheney administration, Congress has seemed willing to allow the Executive Branch to determine on its own if and when military conflict is justified. Only now is it showing some spine after yesterday’s House vote on curbing Trump’s Iran war powers.

Both Republicans and Democrats have long complained about the use of Executive Orders to bypass the legislative process. But Congress has failed to devise an effective method for delaying or cancelling implementation of orders with which it disagrees. Until it does, the status quo will continue.

The political circumstances that have led to the Executive Branch overriding Congress have deep roots going back decades. Since tracing those circumstances depends, to a certain extent, on personal experience, I hope readers will forgive my reliance on first-person narration.

I arrived in Washington in 1957 as a Congressional Fellow appointed by the American Political Science Association. Dwight Eisenhower still had more than three years left in his second term as president. Democrats controlled both the House and the Senate under the leadership of two formidable Texans: Speaker Sam Rayburn and Majority Leader Lyndon B. Johnson.

Although I had acquired a graduate degree in political science and had studied American Government, I quickly learned that Congress behaved very differently than my college texts had led me to believe. Our widely advertised “two-party system” had actually disguised the four-party system that ruled in the House and the Senate. In effect, each of the two major parties were split amongst themselves into two warring tribes.

Both parties were, in reality, coalitions of more liberal and more conservative elements. While some legislative matters might be decided on a partisan basis, majority support for successful bills had to be assembled among the four groupings across party lines. The much-vaunted “civility” of the day was far from incidental. It was an absolute necessity.

The nominal “two-party system” became an actual two-party system in the 1960s, following passage of the Civil Rights Act. As the South began to support Republicans over Democrats, each of the parties took on a distinctly ideological complexion. Moderation became unacceptable to the newly dominant elements on both sides of the aisle, inviting challenges in party primaries. Republican moderates retired in droves or were defeated in primaries by less-accommodating challengers or in the general election by Democrats in purple, usually suburban districts. In general elections, business-friendly Blue Dogs disappeared from the Democratic side.

Three decades later, Newt Gingrich greatly augmented this new dynamic. Before he took over as Speaker in 1995, Gingrich argued that tooth-and-nail attack was the secret to winning a Republican majority. His assault on the integrity of his opponents—the “politics of personal destruction,” as it has been described—put an end to civility as the prevailing mode of interaction across party lines.

As a consequence, bitter partisanship has emerged as the dominant condition on Capitol Hill. When the government is divided, as it is now, cooperation has become impossible. On each side of the partisan divide, compromise has become a form of betrayal. Under those constraints, Democrats and Republicans—from George W. Bush to Barack Obama to Donald Trump—have taken measures like those discussed to circumvent Congress.

When Thomas Jefferson wrote the Declaration of Independence in 1776, he included a long list of “injuries and usurpations” that the British King, George III, had committed against the thirteen colonies to establish “an absolute tyranny.” Eleven years later, having experimented unsuccessfully with a Confederation, the thirteen liberated colonies sent delegates to Philadelphia to create a new form of government, unlike any previously seen.

The Constitution was a direct response to Jefferson’s Declaration. It repudiated the British model. The clear objective was to prevent any future ruler from accumulating the arbitrary powers that the British King had exercised to the detriment of American colonists. In short, it was a defense against tyranny.

Are Republicans in the House and Senate content to see that defense dismantled? Will the American public be satisfied if Donald Trump is acquitted on the impeachment charges, especially in a sham trial without witnesses? Would acquittal affirm the present-day reality that we are gradually enabling what the Founding Fathers labored to contain?

Short answer: I don’t know. But it’s long past time for the U.S. Senate—the jurors in the forthcoming impeachment trial—to acquaint or reacquaint themselves with The Federalist Papers.

Alexander Hamilton dealt with the constitution’s critics in Articles 67-69, arguing that the powers granted to the Executive Branch in Article II were republican in character, not monarchical in scope. Monarchies of the 18th century, he wrote, recognized no limits on the powers of the king. The only recourse ordinary people had was armed rebellion. Instead, America would have the power to remove a tyrannical President in a manner consistent with the rule of law: impeachment.

Impeachment, however, was not envisioned as the main defense against the chief executive’s over-accumulation of authority. Articles 47 through 51, written by James Madison, who is generally credited with being the principal author of the Constitution itself, explained the document’s reliance on separation of powers among the Legislative, Executive, and Judicial branches. The primary assumption was that excesses by one branch would be resisted by the other two. Madison extended the assumption to include the expectation that the Senate and the House would often find it necessary to resist each other. Anyone who has witnessed one of the annual budget battles between the two bodies knows that expectation is consistently fulfilled.

That leaves us to reflect on these four facts: First, the American Revolution, as the Declaration of Independence affirms in detail, was precipitated by the tyrannies of the British king; second, preventing tyrannical government was a primary objective of the Constitution written in 1787 and approved in 1789; third, it is the obligation of each of the three branches of government to resist the excesses of the others; and fourth, keeping the Republic intact is an unfinished task that must be undertaken by every generation of Americans, not least this generation and its representatives in Congress.

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Norman I. Gelman

Norman I. Gelman is a former journalist with a graduate degree in political science. He spent most of his career as a professional public policy analyst and consultant on federal government activities, tracking developments in both Congress and the Executive Branch.