The Constitution Under Trump: A Year-One Report Card

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Posted in: Constitutional Law

Last weekend, Donald Trump celebrated his first anniversary as president of the United States. Millions of Americans marked the occasion with protest marches, while the federal government temporarily shut down due to a budget impasse.

Reviews of the president’s first year in office were generally unkind. The Economist’s assessment depicted the president tossing his pacifier from a baby carriage and asked rhetorically “Is it really this bad?” (Their answer: yes.) The conservative Weekly Standard gave Trump a qualified pass on public communication and political skill, but assigned him failing grades on vision, organizational capacity, cognitive style, and emotional intelligence. Historians are saving a space for President Trump on the worst-ever list.

With 58% of the public disapproving of Trump’s performance, and a plurality convinced that he is mentally unstable, it will take more than a rising stock market to get his popularity back above water. Still, somewhere between 3 and 4 Americans out of 10 continue to back him. That number, while unimpressive, has been remarkably resistant to further deterioration. Despite a regular cascade of missteps, provocations, scandals, resignations, and investigations—any one of which might have capsized a previous administration—Trump has retained the overwhelming support of his party’s base voters and officeholders. However precarious his legal situation and general popularity may be, Trump has yet to trigger the only calamity that could realistically force him from office before the expiration of his term: rejection by a significant portion of his own party.

So, if opinions about how Donald Trump is doing are basically fixed, the real question becomes: How are we doing? How is our Constitution weathering the storm of a norm-busting chief executive? Which will prevail, our venerable system of checks and balances, or a president who evidently prefers to be quite unbalanced? Or can they both somehow continue to co-exist?

To answer these questions, it is worth looking in detail at how the various gears of the constitutional machinery are coping with the Trumpian monkey wrench.

Art: I: Why the Strongest Branch Played the Weakest Game

Course: Congress

Grade: D

The framers of the Constitution put Congress at the very center of their plan. Article I, describing the composition and powers of the Legislative Branch, is longer than the Preamble and the other six original articles combined. In Federalist No. 51, James Madison took it for granted that in a republican government, “the legislative authority necessarily predominates.” In Federalist No. 65, Alexander Hamilton referred to the impeachment power as a “bridle in the hands of the legislative body upon the executive servants of the government.” When we add Congress’ powers to determine executive department budgets, approve executive appointments, conduct oversight hearings, subpoena witnesses and documents, and hold persons in contempt for resisting its demands, you have what Josh Chafetz calls a “potent toolbox” to counter executive excess.

So what has Congress been doing with that toolbox? The answer, sadly, is nothing much.

Of the legislative process in the 114th Congress—the bills rushed to the floor without hearings, debate, amendments, or even a careful reading—the less said the better. But in truth, these procedural shortcuts reflect the unpopularity of the congressional GOP’s own agenda on health care and taxes more than any institutional failure to counter Trump’s plans.

The deeper failure of Congress has been a general refusal to exercise its responsibilities to oversee the Executive Branch. This failure began with a cursory review of Trump’s cabinet choices. Despite the presence of avowed Trump-skeptics in the narrow GOP Senate majority, several marginally qualified or ethically challenged nominees (such as Betsy DeVos, Mick Mulvaney, Jeff Sessions, Tom Price, and Rex Tillerson) were confirmed on narrow, close-to-party-line votes. Such rubber-stamp approvals may yet become a normal feature of our highly polarized politics, but they are a break from historical precedent. Senators of both parties have routinely joined to block weak or scandal-prone cabinet nominees in the past. The GOP “is only sabotaging itself by allowing Trump to draft this C-list roster,” as Matthew Yglesias pointed out at the time. “Rushing weak candidates through is a good way to put points on the board, but only weakens their own administration in the long run.” An undistinguished cabinet, combined with an easily distracted president, is a recipe for drift and confusion.

Congressional lassitude has also extended to other critical oversight functions. No one expected the GOP majority to blow Trump’s every misstep into endless Benghazi-style hearings. But congressional investigations remain the best way to address serious executive administrative misfeasance that may fall short of the criminal. Many of the incoming administration’s norm-defying moves, particularly on ethical questions, could have been effectively countered by a little congressional sunlight. Areas of interest might have included Trump’s refusal to release his tax returns, the conflicts of interest presented by his undivested business empire, his personal interest in the appointment of US attorneys with jurisdiction over those holdings, and his penchant for billing taxpayers for the use of his own properties. These issues receive some periodic attention from the press, and a slice of public outrage, but then are swamped in the ongoing firehose of Trump coverage. Congressional inquiries could keep some focus on the important ethical questions and force them toward some resolution. Instead, Congress has meekly accepted whatever the president dares to get away with. In dismissing a suit challenging Trump’s outside business interests for lack of standing, a federal district judge noted: “As the only political branch with the power to consent to violations of the Foreign Emoluments Clause, Congress is the appropriate body to determine whether, and to what extent, [Trump]’s conduct unlawfully infringes on that power.” The response from Congress? Crickets.

On one issue, Congress has had no choice but to engage in some semblance of oversight: the Trump–Russia scandal. Committees of both the House and Senate have opened investigations, but no select panel has been created like the ones that conducted the Watergate and Iran-Contra hearings. In the Watergate example, Congress did not simply wait for the press and a special prosecutor to do all the work. Congressional hearings played a critical role in uncovering evidence and developing lines of inquiry. House and Senate GOP leaders have refused to recognize that the Trump–Russia allegations, if true, represent a similarly serious rupture in the nation’s governing fabric.

The energy of the House’s inquiry has been particularly dampened by the antics of Intelligence Committee Chairman Rep. Devin Nunes, whose semi-recusal has not precluded him from taking active measures to distort or obstruct the investigation. In the Senate, the picture is not quite so grim. Republicans and Democrats on the Intelligence Committee have maintained some measure of cooperation. But even when viewed in the most favorable light, Congress looks passive and ineffectual compared to other constitutional actors. Instead of galvanizing public attention through televised hearings, Congress has mostly been content to take testimony in private, without putting witnesses under oath. Instead of compelling testimony through its subpoena and contempt powers, it has meekly turned the other cheek to bald-faced evasions and highly dubious assertions of privilege.

This congressional timidity is especially hard to fathom given the GOP’s narrow margin in the Senate. Just two Republican defectors would be sufficient to swing the balance on any issue. Yet for all their brave floor speeches and Sunday-morning-talk-show dissents, few GOP senators have been willing to cast a meaningful vote against Trump. Meanwhile, the Democratic opposition has been mostly united—but rarely effective. Congressional Democrats have so far shown little ability to capitalize on public discontent or mobilize it for tactical ends.

The Founders did not imagine that we would always be ruled by selfless, virtuous people. Instead, they foresaw that “ambition must be made to counteract ambition” (in Madison’s phrase). Then why has a Congress—filled, by definition, with ambitious people—failed so miserably to counteract Trump? We can point to some likely suspects, such as increased partisan intensity and tribal information bubbles. But if Trump has succeeded at anything, it has been the alignment of the congressional GOP’s ambitions with his own. For an ambitious GOP pol, opposing Trump still looks like a sure way to end one’s own career, not the president’s. Like a modern George III, Trump has so far succeeded in suborning a parliamentary majority to his ends, through fair means or foul. The result has been a missed opportunity to re-assert Congress’ constitutional powers and reign in Trumpian excess.

So why only a D? Is this grade inflation? No. As weak as this Congress has been, we have to admit that it could have been worse. A little investigation of Trump-Russia is better than no investigation. GOP party discipline has mostly held, but the occasional cracks have been interesting. And Trump has had no real success attracting or coercing support from the Democratic opposition.

November’s midterm elections will give Congress a chance to improve its grade before the final. But for now, the report card is one they will be afraid to show to their constituents.

Art. II: Who Will Guard the Guardians?

Course: Executive Branch

Grade: B+

It may seem strange to consider the role of the Executive Branch in checking the president. After all, at least according to “unitary executive” theory, the Executive Branch is the president. This idea, rooted in in Art. II, Sec. 1’s statement that “the executive Power shall be vested in a president” holds that executive power is unitary and indivisible. Among other things, this includes the right to dismiss executive branch officials, with or without cause. According to this theory, the president’s will shall be writ across the entire executive branch, and any legitimate constitutional opposition to his designs must come from the other branches or from the federal system itself.

An alternative view looks at the Executive Branch as a much more complex system. In practice (if not necessarily in theory), the president sits at the head of an executive office with considerable powers, but few of them are absolute. The president shares executive power with cabinet officials, thousands of subcabinet political appointees, dozens of quasi-independent agencies, the uninformed military, and a large civil service (a/k/a “bureaucracy”).

Most of these actors are subject to a chain of command that starts with the president, but they are hardly automatons. All executive officials take an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Congress regulates the executive departments by law and controls their budgets. Cabinet officers have their own ambitions, reputations, and relationships with Congress to consider. Bureaucracies have their own values and subcultures. Civil servants who have devoted their lives to the missions of agencies like the CIA, FBI, and EPA do not abruptly change their entire worldview upon the election of a new president. At most, they adjust their expectations of what will be prioritized and achievable.

This tendency of bureaucracies to cling to their own agendas and resist radical change can be a bug or a feature, depending on your point of view. These forces can protect the country against radical, ill-considered lurches in policy based a momentary change in partisan winds. At the same time, they can make the government less responsive to democratic control. But whatever view we take, the outgoing President Obama was surely right to observe that the federal government “is not a speed boat, it’s an ocean liner.”

President Trump has found it a hard one to steer. Before his own team began to take shape, Trump had to rely on “Obama holdovers” and career civil servants to execute his orders. A little over a week after taking office, Trump felt compelled to fire Acting Attorney General Sally Yates. Based on her own judgment about the legality of the president’s immigration order, Yates had instructed the Justice Department not to defend it in court.

Even more famously, Trump reportedly sought professions of “loyalty” from incumbent FBI Director James Comey, whose 10-year statutory term was designed to insulate his office from political control. Unimpressed by Comey’s highly qualified expressions of fealty—and refusal to exonerate him in the Russia probe—Trump fired the FBI Director in May 2017. Far from ending the probe, Trump only succeeded in intensifying it.

Trump has generally found his own appointees to be more pliable. But even with them, executive power has been hardly unitary. Under pressure from former colleagues in Congress, Attorney General Jeff Sessions recused himself from the Russia probe due to his own conflicts of interest, a decision Trump has repeatedly decried. Sessions’ deputy, Rod Rosenstein, quickly appointed the widely respected former FBI Director Robert Mueller as special counsel to lead the Russia probe. Though a political appointee, Rosenstein is a career prosecutor who represented the values of the Justice Department. Meanwhile, Mueller’s appointment could have only delighted members of the FBI concerned about Trump’s treatment of Comey.

Adopting a left-wing trope, Trump has taken to denouncing the FBI and CIA as part of a “Deep State” of entrenched interests allegedly hostile to his rule. Trump’s partisans have also waged a war of words against Mueller, attempting to paint the long-time Establishment Republican figure as biased against Trump. They have also asserted the president’s right to fire the special counsel, though not necessarily his intent to use that right.

These arguments, while patently self-serving in the present case, raise serious constitutional issues that go back at least to Watergate. How can the Executive Branch investigate itself? If the investigation is subject to control by the president, how can it be trusted? If the executive power of prosecution is to be supervised by other branches of the government, how can that be reconciled with the separation of powers? And if a special prosecutor is subject to no check at all, what is to keep the prosecutor from going out of control? (As Justice Antonin Scalia warned in a prescient dissent in Morrison v. Olsen (1988), “How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile.” It is a sentiment that former President Bill Clinton would no doubt endorse.)

Special Counsel Mueller now holds his office—as well as the fate of the Trump Administration and even the Republic itself—by a slender constitutional thread. Only Sessions’ recusal, Rosenstein’s appointment, and internal Justice Department procedures formally protect Mueller from arbitrary dismissal. Congressional discomfort and public outrage may provide a second line of defense, although it would be foolish to place much faith in the former. The president may still end up ousting the Special Counsel, despite the political carnage it would entail, if he sees no other options to escape the Trump–Russia net.

Still, it is a tribute to the powers and resilience of the Executive Branch—as distinct from the president—that we are even having this discussion. Let us assume for a moment that Donald Trump (or persons close to him) did conspire with a foreign power to tip the 2016 presidential election in his favor. It would be the biggest scandal in American political history. Yet with a supine Congress unwilling to act, and the judiciary unable to take up the case on its own initiative, Trump would have gotten away with it—if not for resistance from within the Executive Branch. If the crime is ultimately exposed, it will be because the Executive Branch refused to submit to the unitary rule of one man and chose the rule of law instead.

That thought should be as sobering as it is exhilarating. After all, the idea that the Executive Branch would somehow balance the chief executive himself is not evident in the constitutional design, however welcome and necessary it may be as a supplement. In the first year of the Trump era, it almost seems that a lack of ambition has countered ambition. We have relied upon the willingness of officials to resign or be fired rather than obsequiously cling to power. The 73-year-old Mueller has emerged from retirement to take on a perilous and potentially thankless task. Even officials appointed by Trump himself (such as Sessions, Rosenstein, and the new FBI Director Chris Wray) have held back from taking actions that might have been odious but effective in squashing the investigation.

It is important to view these developments as a matter of luck and timing, rather than constitutional design. Different individuals might have made different choices. And, over time, we can expect the Executive Branch’s capacity to restrain its chief executive to decline. In the short term, there are many ways to resist (foot-dragging, leaking to the press), but in the long run there are only two options: leave or cooperate with those in power. If loyalty to Trump is the primary criteria for political appointment, Executive Branch appointees will eventually exhibit that loyalty, if nothing else. And few non-loyalists will want to enter government service while that government is in disarray, or worse.

For Trump supporters, such a development will come as welcome news. For the rest of us, we may miss the “Deep State” once we’ve seen what a shallow one looks like.

Art. III: How the Least-Dangerous Branch Climbed Out on the Furthest Limb

Course: Judiciary

Grade: A-

In Federalist No. 78. Alexander Hamilton famously called the judiciary the “least dangerous branch,” reasoning that it had neither the popular support of the legislature nor coercive force of the executive to back up its rulings.

In this light, the willingness of the federal judiciary to thwart President Trump’s early executive orders on immigration stands out—either as a sign of Americans’ ingrained devotion to the rule of law, or (if one is inclined to indulge the Trumpian view of things) the entrenched power of unaccountable judges with lifetime appointments. In either case, it is easy to forget how the early weeks of Trump’s presidency were dominated by the hastily drafted “Muslim ban” and the string of judicial defeats the administration suffered as a result. It is also easy to forget, amid the subsequent normalization of presidential Twitter bombast, that Trump’s initial reaction to a loss in court was to tell the public to blame the judge for future terror attacks.

Such attacks on the independence of the federal judges may someday seem more risible than real, but they should be taken seriously. Had events played out differently, the judiciary could have found itself a target in more than a rhetorical sense. We should appreciate that—despite the risks of public vilification (or worse)—the federal courts provided an effective forum to contest the Trump administration’s most vindictive and ill-considered policies, at a time when other institutions seemed incapable of doing so.

The Supreme Court ultimately pulled the courts back from direct confrontation with the administration, upholding a revised immigration order. And the courts have handed the president other victories, such as the aforementioned dismissal of the Emoluments Clause challenge.

President Trump’s future prospects with the Judicial Branch can only improve. The GOP-controlled Senate has moved quickly to confirm his choices for the federal courts, not least with the filibuster-busting nomination of Neil Gorsuch to the Supreme Court.

Still, the federal judiciary cannot be accused of failing to perform its constitutional role. It has provided a significant counterweight to the Trump Administration’s wilder flights. With perhaps a few exceptions, it has maintained its dignity and independence. Alas, the same cannot be said for the more “dangerous” branches.

Art. IV: The State of the States

Course: Federalism

Grade: A-

Adherence to federalism as an abstract idea is rare. Most people are tactical in their preferences. They like federal power when it is wielded on behalf of their policy aims and they like state power when it serves their goals better. Conservatives who laud state autonomy against federal power over, say, healthcare will often reverse that stance on issues like marijuana. Liberals who believe state officials can be required to help enforce federal gun laws will often have second thoughts when it comes to federal immigration laws.

Federalism does not ensure consistency in our individual opinions, but it does create a safe space for pluralism. Even when the federal government falls into one-party rule, state governments provide a refuge and a power base for different ideas.

State governments have already provided a significant countervailing force against the Trump Administration. This opposition first appeared in the courtroom. State attorneys general (in Washington State, New York, Hawaii, and elsewhere) were instrumental in challenging Trump’s immigration orders and many other measures. State AGs have the legal standing and resources to bring many claims that private plaintiffs cannot.

Second, as the Obamacare saga demonstrated, the states can pursue policies that circumvent or frustrate federal aims. So Trump’s EPA no longer wants to act against climate change? California can forge ahead with its own policy. With the world’s sixth-largest economy, it will not be ignored.

Third, and most controversially, states can withhold from the federal government their cooperation on certain policies that are locally unpopular. Here, they are on solid legal ground, as the Supreme Court backed local officials who refused to cooperate with federal background checks on gun purchases in Printz v. U.S. (1997). Now, several states and local governments are limiting cooperation with federal authorities in response to the Trump administration’s crackdown on immigration.

Finally, state elections provide a channel for expressing discontent. With the GOP enjoying the control of a majority of state governments that it has held since the 2010 midterm elections, the playing field for the opposition so far has been limited. But a handful of state elections in 2017 indicated that major changes could be coming in 2018. If so, the states could be an active field of resistance for the remainder of the Trump presidency.

First Amendment: How the Free Press Survived a Year in the Crosshairs

Course: The Press

Grade: B

If President Trump’s wrathful tweets were the sole measure of effective opposition, the American press would have to be considered the gravest threat to his presidency. From his general appropriation of the “fake news” epithet to targeted attacks on news organizations and personalities, it is safe to say that no US president has ever expressed even a small fraction of the hostility to the media displayed by Trump. At the same time, no US president has ever been so obsessed with the media—a potentially toxic combination.

Still, all of Trump’s threats have failed to revise US libel laws or prevent news organizations from gathering and reporting an enormous volume of critical stories about the administration. If we know that the secretary of state called the president a “moron”, that the president watches eight hours of TV a day, or that he paid a porn star $130,000 to hush up an affair, it’s because someone in the news media found out and told us.

So, the press is working hard at its job. Why doesn’t it get a better grade?

Because the truth is not enough. Context is also needed. That lesson from the 2016 election campaign—overwhelmingly dominated by coverage of Hillary Clinton’s email server—seems to have been left unlearned. The news media has spent as much energy normalizing Trump as it has exposing the manifest abnormalities of his presidency. In its valiant efforts to find “both sides” to every story, the media has given credence to clear falsehoods, and a platform to any charlatan willing to spout a pro-Trump line, no matter how incredible. It has let the president dictate the direction of any news cycle with a twitch of his thumbs.

And that’s just the so-called mainstream press. Any reckoning with the Fourth Estate must recognize the role of Fox News and the rest of the avowedly conservative media. No longer content to simply put a conservative spin on the news, or even to serve as the propaganda wing of the GOP, Fox has become an expression of the president’s id and a feedback loop for his ego. Without the insulation provided by a conservative media bubble, it is difficult to see how Trump’s approval rating could even remain in the 30s. Put another way: if Fox News had existed during Watergate, would President Nixon have retained enough support from his base to survive the scandal? When a big chunk of America gets its news from Sean Hannity instead of Walter Cronkite, anything is possible.

Donald Trump may not appreciate the strengths of the American media, but he certainly understands its weaknesses. Trump knows how to exploit the traditional media’s ideal of objective fairness, and the conservative media’s rejection of that ideal. Most of all, he knows that the media loves a good story—and he is a great story.

The American press can be counted on to protect its right to report and sell that story. But don’t expect the media alone to write the ending.

Tenth Amendment: How Are We, the People?

Course: Public Opinion

Grade: B+

All the mechanisms of our Constitution are just indirect ways of expressing public opinion. The job of governing, ultimately, belongs to us and us alone. So how has public opinion responded to the first year of this unprecedented presidency?

On the whole, the reaction has been a healthy skepticism, hardening with experience into firm opposition. After his inauguration, Trump’s approval ratings quickly fell into negative territory and have remained there since. Although he has maintained a base of steady support among Republicans, Democrats and independents have opposed him with increasing intensity.

Those opponents are apt to look at the 30-40% of the public that still supports Trump with a sense of bewilderment. But it could be much, much worse. If the institutions of American democracy seem to be under siege now, imagine what the scene would look like if Trump commanded the support of 60-80% of the population.

Constitutionally speaking, the worst-case scenario with Trump has been that he might install a creeping authoritarianism in the guise of a republic, perhaps along the lines of the regimes he admires in Russia, China, and Turkey. The scenario is not so far-fetched as it may sound.

Public opinion—as much as any constitutional structure—has so far kept this possibility at bay. But opposition to Trump has yet to take the practical, determined form that could actually drive him from power. Consider the huge and unprecedented protest marches that bookended Trump’s first year. They showed a popular opposition that can mobilize itself, but that has yet to be connected with concrete, achievable political objectives.

All that could change in November 2018. A new Congress might be enough to wipe the slate clean. In the meantime, the American constitutional system will struggle with its daily assignments, hoping to survive by acing the final.