Trump will create a new constitutional norm
Jeffrey Toobin points out that our constitutional system wasn’t set up to deal with a Trump.
The Framers anticipated friction among the three branches of government, which has been a constant throughout our history, but the Trump White House has now established a complete blockade against the legislative branch, thwarting any meaningful oversight. The system, it appears, may simply be incapable of responding to this kind of challenge.
So the framers didn’t plan for assholes, aka malignant narcissists, aka psychopaths. Bit of a mistake, that.
Federal judges deal with disputes between Congress and the White House one case at a time, but that won’t do with this blockade.
But this approach by the courts—adjudicating one Administration claim of defiance at a time—will miss the point in the current era. There has never been a President who directed an open campaign of total defiance against another branch of government. It is simply misleading to consider these claims in isolation from one another, because the President has acknowledged that they are part of a coördinated campaign. The law has no clear mechanism for adjudicating these claims together—but they belong together. Trump is leading a political campaign, and it calls for a political, not just judicial, response.
The most obvious political response to Trump’s defiance of Congress—and thus of the norms of constitutional history—is impeachment. One article of impeachment against President Richard Nixon accused him of failing “without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas.” But the Trump Administration is likely to fight all subpoenas in court and wait for resolution there; only then will it be possible to say whether the resistance to all subpoenas is “without lawful cause.” And these cases will drag on. Indeed, Administration lawyers know that bad arguments, as well as good ones, can tie up the courts for months, if not years. (The litigation over Holder and the Fast and Furious documents just ended—after seven years.) Democratic leaders in the House are already skeptical, for political reasons, of pursuing impeachment, and lingering, unresolved disputes in the courts will make a push to remove the President even less likely.
So, after nearly two and a half centuries, Trump will create a new constitutional norm—in which the executive can defy the legislature without consequence.
Fabulous.
The Constitution was always predicated on the idea that all the players agreed to the terms, and would follow them. Trump doesn’t even understand them. He doesn’t like them. He doesn’t believe they apply to him. He will defy any attempt to make him behave.
The founders assumed the president would always be a man (yes, of course) like themselves, educated and knowledgeable about the government and the world, with a high level of integrity (which many of them lacked even then, but were not necessarily aware of the lack), and with a commitment to following rules and traditions. They thought by setting up a system that de facto gave property owners the franchise, they would only have landed gentlemen in the office. Trouble is, Trump fits the description – he is a member of the owner class, he has a college education, and he is a successful man of business (although how successful we are not allowed to know). It never occurred to them that one of their own could be so woefully lacking in every possible qualification for the office.
Which astounds me, because I know that there were landed gentlemen back then that lacked all the qualities that Trump lacks. I guess the framers of the Constitution simply assumed that the rest of the landed gentry would understand how limited they were, and would vote for the more qualified individual. Since many of Trump’s voters are in that class, I see they were decidedly wrong.
One does wonder how a Hillary Clinton would have fared at the time. Would the educated men of that period been able to see that she possessed an outstanding resume and was intelligent, capable, and strong? Or would they have dismissed her as just a woman, and voted for Trump instead? I don’t think I want to know…
And meanwhile, we have another debt showdown looming in September, and congress is doing nothing about it because they are too tied up wrangling with Trump.
It does not help that Congress has over the past few administrations allowed more and more leeway to the executive branch.
Very true.