The Trump Presidency is the Best Civics Lesson in Our Lifetimes

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Posted in: Constitutional Law

The Trump Administration has provided the best civics lesson to every American in our lifetimes. As it careens from one mistake to another, the rest of the government has come to life in front of our very eyes. Here is a nice summary so that every American can understand what they may have forgotten they learned in 8th grade (and actually some bonus topics as well!).

As I discussed here, toward the beginning of his term, President Trump seemed to believe that his charge was to eliminate the government only to learn that he is in fact the government. Because he is part of the government, the government machinery around him began to grind into life, which in turn imposed limits he railed against. But let’s start from the beginning of the constitutional structure.

Three Federal Branches and Checks and Balances

The President of course is one-third of a tripartite federal system in which he shares power with Congress and the courts. They each have their own Article in the Constitution and their specifically assigned powers, but each is also designed to limit the other’s powers. Why? Because the Framers understood that anyone who holds power is dangerous, and unchecked power is the most dangerous. So when Trump issued his astonishingly overbroad first Muslim ban, it landed immediately in the courts, where it was their job to block it. And they did. He was obviously personally frustrated, but as the President, he had no power to force them to retract their holdings. Therefore, he had to moderate the ban to some degree, which now is in the courts.

Then there was the first round of Trumpcare in which he worked day and night to cajole members of the House to pass something, but by himself he simply could not get a bill through. Congress, and especially the House, was constructed to be slow and deliberative. This is the most dangerous branch in that it is creating the law, so the Framers crafted it in a way that would deter snap decisions. To put it mildly, that is a feature that does not mesh well with Trump’s imperious impatience. But again, due to the constitutional system, there is nothing he can do about that, and he had to wait for the House to get a bill through, which it eventually did. But then he bumped up against bicameralism, the fact that we have two houses in Congress, not one. Now, he must wait for the Senate to dramatically alter or even gut the bill the House produced.

The States as Dual Sovereigns

The other frustration the Trump Administration has had to endure is that the states cannot be ordered to do whatever the President commands. Trump wants an end to sanctuary cities, but states like California do not.

The Constitution

The Constitution not only accords power to each branch, and establishes checks and balances, but it is also the source of real limits on government actors. It is because of the Constitution that the travel bans have faltered. Under the First Amendment, the President cannot govern by singling out one faith for negative treatment. The Constitution also bars the federal government from commandeering the states. It should also be noted that the Constitution, in the Twelfth Amendment, dictated that even though he did not obtain the popular vote, Donald Trump won the election under the Electoral College. Sometimes it works in his favor.

Blocking the Influence of Foreign Powers

Few people knew about the Emoluments Clause before Trump became President but now it is a frequent topic of discussion. It forbids any “Person holding any Office of Profit or Trust under [the United States]” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” In other words, foreign governments may not buy the favor of American government officials. If a United States official does accept such a present, he has violated the Emoluments Clause, which is likely grounds for impeachment. A lawsuit against the President on this very issue is now pending.

Impeachment

The public has learned that it is possible to remove a corrupt President. Trump has created many problems for himself. We still don’t know if he has violated the law, betrayed the United States, or simply engaged in cover up for no good reason. The rising mountain of behaviors that beg for explanation includes his refusal to produce taxes, the inexplicable love affair with Russia, the loyalty to Gen. Mike Flynn, who is increasingly looking like someone who misrepresented his relationships with troubling foreign governments, and the requests to halt investigations into his dealings with Russia. Impeachment, which is the precursor to removal, is justified for “treason, bribery, or other high crimes or misdemeanors.” While all agree at this point that the institution of impeachment proceedings against Trump is premature, the word is in the air, because of these odd and troubling behaviors. With the House and Senate and FBI investigating the various aspects, a decision on whether to file for impeachment will have to be made at some point. As these investigations develop, the public will also learn more about the procedures of impeachment as it is batted around.

Succession

With many of the latest revelations, and the possibility that impeachment could happen, attention has drifted to the rules of succession. Say Trump is impeached, the next one in line is Vice President Mike Pence. There is reason, however, to also ask who would succeed Pence, because he led the transition team that let Flynn through, who is increasingly a focal point of trouble. The Constitution accords Congress the power to determine succession, and according to a congressional act the Speaker of the House, Paul Ryan, would follow Pence. And after him, it would be the President pro tempore of the Senate, who happens to be Senator Orrin Hatch.

Whatever one thinks about the politics of it all, there is no question the American public has to be more conscious of our shared civics structure than at any time in recent history. That is the silver lining in the dizziness of this era.