Donald Trump vs. The Constitution?

One of the chief Republican criticisms of President Obama has been that he is lawless.  In particular, they argue, he cares little about constitutional formalities, he abhors Congress and will evade Congress when it suits him, and he manages a deeply politicized administration.  And so the Republican antidote to the oft-asserted lawlessness of Mr. Obama will be . . . Donald Trump?

Mr. Trump has reiterated his own excellence in crafting and negotiating deals.  It is hard to argue that he has not had some significant success in doing so.  And surely there is a deal-making component to the American presidency.   Of course, the powers of persuasion function a little differently when you’re not able to fire everyone else in the room.  Calling elected politicians “idiots” and “dummies” may work at a campaign rally, but it won’t get Mr. Trump 218 votes in the House and 60 votes in the Senate.  Insulting John McCain and Lindsay Graham may sound great on the trail, but it will not persuade them to vote with you when it is crunch time on the Hill.

There is, indeed, more to the Presidency than negotiation and deal-making and persuasion.  Constitutional formalities, and institutions, matter.  If Trump were somehow to be elected President, his first act would be to take an oath, enshrined in Article II of the Constitution, to “faithfully execute” the office of President and to “preserve, protect, and defend” the Constitution.  But does Mr. Trump know or care much about the Constitution – either its empowering traits or its limits?  Perhaps he does.  But to listen to Trump’s rhetoric, one would think he is running for King, rather than a constitutional officer who is subject to checks by both a legislative and a judicial branch.  This is hardly the kind of President that would satisfy those who believe that Mr. Obama has too often conducted himself as a monarch, and is too often merely dismissive of those who disagree with him.

So tonight at the joint press conference – er, debate – in Cleveland, give some attention to whether Mr. Trump demonstrates a willingness to talk about, and be bound by, the rule of law and a constitutional system that empowers other institutions besides the President, and that gives great authority to a lot of people who will not answer to Mr. Trump.  How would Mr. Trump deal with a recalcitrant Congress that rejects his proposals (perhaps one in which one or both houses is controlled by Democrats)?  How would he use his veto power?  Would he seek congressional authorization for large-scale military actions?  Would he obey decisions of the Supreme Court, or lower courts, that restrain his power?  Would he try to punish those who exercise their First Amendment rights to criticize him?  One of the great constitutional tragedies of modern American politics is our elevation of the Presidency and minimization of Congress (though, to be fair, Congress has acquiesced by failing too often to assert its institutional prerogatives).   Modern Presidents now seek to determine national political “agendas,” and to dictate the content of national legislation.  That kind of modern presidency suits Mr. Trump’s style.  But it is not at all clear that it is consistent with the Constitution’s design.

Some seem to think that the way to challenge Mr. Trump is to attack his tone, his attitude, his personality.  That, for now at least, seems to be a losing battle.  Those are the things people seem to like best about him.  The better challenge to Mr. Trump is on substance, on knowledge.  This means challenging not just his knowledge of American government (which, for now, seems tenuous) but his willingness to abide by the enduring limits on it and by the constitutional separation of powers, in particular.  This is not a mere academic exercise — Republican primary voters seem to like candidate appeals to the Constitution; the rhetoric of constitutionalism functions as an applause line at Republican campaign rallies and town halls.  These voters may not be scholars of constitutional law and history, but they appreciate a candidate who respects constitutional forms.  And they are deeply skeptical of Mr. Obama’s fidelity to the Constitution when his own agenda is at stake.

Perhaps none of the debate questions or conversation will delve too closely into constitutional powers or rights.  But they should.  Republican voters care about these matters.  Moreover, I expect that Ted Cruz will find a way to inject his views about the constitutional role of the President.  The same goes for Rand Paul and his enlarged view of the Fourth Amendment.  And I have little doubt that the Second Amendment will have multiple champions during the debate (this is the one provision of the Constitution I have heard Mr. Trump mention, though he has not made clear his view of its proper scope – perhaps a question about his views on the constitutionality of an assault weapons ban, or expanded background checks, would be illuminating).  So hopefully Wallace, Baier, and Kelly will be armed with at least a few questions that will help to distinguish all of the candidates, not just Mr. Trump, on matters of constitutional substance and deliberation.

The great difficulty in administering a government run by human beings, Publius observed in the 51st Federalist, is that you must first enable the government to control the people, and then, “oblige it to control itself.”  Will Mr. Trump allow himself to be subject to the controls of constitutional government?  If Republicans are serious about their criticisms of President Obama and his constitutional vandalism, as George Will has called it, then the current nomination process must deliberately  discern a candidate who is publicly committed to constitutional fidelity.  If Mr. Trump is unable to publicly demonstrate his fidelity to the Constitution, including its limits on presidential power, then Republicans should be unwilling to accept him as a successor to the current president.


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