Drug prosecutions in the Trump Administration

At one of this week’s White House press briefings, Sean Spicer spent considerable time (clearly more than he wished) discussing the President’s approach to federal drug policy.  This is one of the areas that I had previously flagged as representing a potentially meaningful departure from Obama Administration policy at the Justice Department.  Spicer’s briefing appeared to signal that this Administration would take a more aggressive approach to drug crime than its predecessor.  But that remains unclear.

Indeed, Spicer’s briefing may have created more new questions than it answered, which has become a rather predictable consequence of his briefings.  Notably, Spicer discussed an obscure appropriations rider (which I previously discussed here) that defunds federal prosecutions for drug offenses in states with liberal medicinal marijuana laws.  He distinguished — on no fewer than three occasions — recreational use from medicinal use, saying, with respect to federal drug enforcement relating to recreational use, “I do think you’ll see greater enforcement of it.”  Presumably, in context, he means greater enforcement of the Controlled Substances Act where the use is recreational.  Strangely, he subsequently tried to walk that statement back, instead referring the issue to the DOJ.

But the question now arises: will the Sessions DOJ more aggressively prosecute CSA offenses?  Will the Sessions DOJ reverse the Holder Memo from August 2013 that directed federal prosecutors not to allege drug quantities that trigger mandatory minimums if certain criteria are met?  That was a major pronouncement from Main Justice, and will have a meaningful effect on the way federal prosecutors treat drug crimes.  Yet the Administration has thus far been silent, and Spicer’s briefing did not help to clarify that matter.

Moreover, the rider to which he alluded does not cover every jurisdiction, because not every jurisdiction has liberal medical marijuana laws.  And it only applies where the defendant is in compliance with all of the State’s marijuana use laws.  This means that, potentially, a defendant who is in violation of the CSA, but who is using the marijuana for medicinal purposes in a state that is not covered by the rider (say, for example, West Virginia), could still be subject to prosecution.  Spicer did not seem to appreciate this scenario, and it raises the question: will the Administration prosecute those defendants?  If so, does that not obliterate the distinction between medicinal use and recreational use that Spicer had drawn?  Also, the rider is of limited duration; Congress could change it at any time.  What will the Administration’s position be on continuing the policy adopted by the rider?  Spicer did not say, but his distinction between recreational use and medicinal use would suggest that the Administration wants the rider to exist indefinitely.  Does Jeff Sessions?

Finally, Spicer was asked repeatedly about the Administration’s decision to reverse the Obama Administration’s interpretation of Title IX with respect to transgender bathroom access.  Spicer referred to this as a “states’ rights” issue (it is not, though that is a subject for another day), and said “we are a state’s rights party.”  I have said before that the use of the term “states’ rights” is constitutionally unsound, in my view, and that conservatives should not use it (“federalism” is a far better term, and is more accurate).  But if Spicer is correct that the Administration is committed to federalism, what, then, does that mean for federal drug law generally?  Of course, the CSA was upheld against a Commerce Clause challenge in Gonzales v. Raich, but two notable conservatives – Chief Justice Rehnquist and Justice Thomas – dissented in that case, as did Justice O’Connor (a notable defender of federalism and of state interests).  Why is drug law not a “states’ rights issue,” too?  By making the transgender bathroom issue one of federalism, Spicer has opened the door to questions about whether the Trump Administration is committed to federalism across subject matter, or whether its approach to Title IX is a kind of fair-weather federalism.

Sure, the appropriations rider is a federalism-protection measure.  But reference to the rider alone tells us nothing about the Administration’s view more broadly concerning the role of the federal government in making and enforcing criminal drug laws.  Perhaps more notably, Spicer’s responses raised this question: if federalism demands respecting the states that have chosen to make medicinal use legal, why does federalism not demand respecting those states that have chosen to make recreational use legal?  In other words, even if we grant the difference between recreational and medicinal use, does a true commitment to federalism require respect for state decisions as to both?

I’m no fan of more liberal drug laws.  There must be a robust drug policy regime that takes a variety of approaches — including, but not limited to, prosecutorial ones — to the range of drug problems in this country.  Spicer, of course, cannot be expected to answer at one briefing every question regarding the President’s views on these various problems.  But this Administration needs a coherent approach to both drug policy and constitutional federalism. And right now it has neither.

 

Suspected thief turns out to be felon in possession, but gun turns out to be inadmissible

Sometimes a federal gun possession crime results from an investigation specifically directed at the gun offense.  Sometimes, however, gun crimes result from investigations that have nothing to do with guns.  Just ask Phillip David Hernandez, who had an encounter with police as he walked next to a construction site that was located in a high-crime area and that was known for being the target of thieves interested in the construction materials there.  Did the police encounter turn up any stolen construction materials?  Nope.  It turned up a gun – which, as a convicted felon, Hernandez was not permitted to possess.  His case raises the question: was he “seized” for purposes of the Fourth Amendment when police questioned him from their patrol vehicle as he walked near the construction site?  If not, then the gun is admissible against him because the encounter is a “consensual” one, and does not implicate the Fourth Amendment.  But if it was a seizure, then the police have to demonstrate reasonable suspicion for the stop.  Can they?

According to the Tenth Circuit’s opinion in United States v. Hernandez, in October 2014, Denver police spotted Hernandez walking next to the construction site.  He wore all black clothing and carried two backpacks.  The site had been the subject of recent thefts of various materials, including sheet metal and copper piping.  Police suspected Hernandez might be serving as a lookout for thieves, though there was no one else around.  The officers also found it odd that Hernandez did not use the sidewalk on the other side of the street, but instead walked next to the construction area, essentially in the street.

When the officers pulled alongside him, Hernandez kept walking, and the officers followed along in a moving vehicle.  They did not display weapons nor raise their voices.  When asked where he was going and where he had been, Hernandez said he was at his grandmother’s and was headed home.  He then said, upon being asked, that he could not remember his grandmother’s address.  When asked if he would stop walking and talk to the officers, Hernandez complied.  When asked, he gave his real name but a false birthdate.  The officers pulled up his information on their computer, and it showed Hernandez’s mug shot and that he had violated parole, for which there was an active warrant.  He was informed of the warrant and approached by the officers on foot, and he began to walk away.  He reached for his waistband and an officer asked if he had a gun.  He said “yes,” the officer grabbed his arm, and a revolver fell to the ground.

Hernandez was indicted for being a felon-in-possession, 18 U.S.C. 922(g)(1), and filed a motion to suppress, which the district court granted.  The Government appealed.  The Tenth Circuit affirmed the suppression of the gun.

Was Hernandez seized?  Yes, this was a seizure that required reasonable suspicion, according to the court.  While this began, as do many police encounters on the street, as a consensual encounter that required no justification, it became a seizure when the officers asked Hernandez to stop walking and talk to them.  This was the point at which a reasonable person would not have felt free to terminate the encounter and continue on his way – considering that that it was dark, there were no other people around, and the request to stop was made by two uniformed officers who had been following him.  As the court put it, “a reasonable person would have believed that compliance with the ‘request’ was not optional.”

Now that we know he was seized, was there reasonable suspicion that would have justified the seizure?  No, the court said.  The police stop of Hernandez was, rather, based on “inchoate suspicions and unparticularized hunches,” the court wrote.  They had no evidence specific to Hernandez that he had committed any crime, and the mere fact that he was walking next to a location that had been the subject of previous criminal activity is not enough to make their suspicion of him reasonable.  Neither was the fact that he was in a “high-crime” area, or that he wore all black and had two backpacks, or that he chose not to use the sidewalk.

What about the fact that he could not recall his grandmother’s address?  The court found that the Government had not relied upon this argument previously, and should not be able to rely upon it now on appeal.  Still, that fact would not be entitled to much weight, the court said.  When each officer testified, neither relied upon this fact to establish their suspicions about Hernandez, “which,” the court said, “is understandable because ordinary experience tells us that a grandchild who knows the familiar way to his grandmother’s house may well not know her exact street address.”

A final aspect of this case is notable.  Could the Government have argued that the finding of the gun was sufficiently attenuated from the initial unlawful stop, given the existence of the active warrant for Hernandez, a la Utah v. Strieff?  Recall that in Strieff, the Court applied the attenuation doctrine to hold that the discovery of an untainted warrant breaks the link to an unlawful Terry stop.  As it happens, Strieff was decided after briefing and argument in Hernandez.  But the Government never relied on attenuation in the district court, and so had waived that argument on appeal.  Before Strieff had been decided, the Tenth Circuit noted, two other circuits followed the same rule that was ultimately recognized by the Supreme Court in Strieff.  So the attenuation argument was available to the Government, but the Government did not pursue it.

Query whether, had the attenuation argument been properly before the Tenth Circuit, Strieff would make the gun admissible.  Applying the Brown factors, as did Strieff, the Government would have had a persuasive argument that the discovery of the warrant here was an intervening circumstance that makes the gun admissible.

The constitutional education of America, and of its President

The Ninth Circuit has ruled that President Trump’s Executive Order could remain subject to a stay issued by the District Court in Seattle.  The opinion is here.  This is not a ruling on the merits, though the emergency relief standard was applied and the Court concluded that there was not a likelihood that the Government would succeed on the merits of the case.  The court’s holding was, in my view, a dubious one, though not an unreasonable one.

Regardless of one’s position on either the wisdom or legality of the Order (and I believe the arguments for its legality are far stronger than the arguments for its wisdom), the entire episode has served as a kind of civic education for the American people.  Americans are confronted with serious questions about the scope of presidential power, of constitutional rights, of the place of religion in the scheme of law and policy, and of the role of courts in cases where rights and security intersect.  We have had other such moments in our history.  But it is difficult to think of a time in recent memory when so many valuable questions of constitutional government arose over a single official act.

Americans, regardless of party or viewpoint on the Order, should take time to carefully consider these matters and what they mean for the Republic.  That does not mean that they should all crack open a copy of The Federalist Papers (though we could all do much worse than to spend a few moments with Publius these days), or study The Steel Seizure Case by the fireside with a glass of chianti.  It does mean, though, that Americans ought to savor the opportunity to reflect on what it means to live under a rule of law and a venerable Constitution that diffuses government power.  They should reflect on what it means to have limited government, to have checks that prevent presidents from simply acting at will and checks that prevent judges from ruling as philosopher-kings.

One hopes, too, that the President will savor the same opportunity.  His actions for the past two weeks (nearly two years!) have created serious questions about his commitment to the rule of law and to constitutionalism, questions I raised during the campaign and that have persisted despite my dim hope that his authoritarian tendencies might be tempered by institutions, by an appreciation of history, and by the sheer weight of his office.  The one bright spot in this period was his nomination of Judge Gorsuch.  But as I said during the campaign, it is not enough that Presidents appoint judges who are constitutionalists.  The President himself must demonstrate that same fidelity.

Presidents can be critical of the courts.  The judiciary is not immune from criticism, nor should it be.  Lincoln, before his presidency, thoughtfully criticized the Dred Scott decision.  FDR’s tussles with the Supreme Court were so tense that he proposed packing the Court with Justices who would approve his economic recovery programs.  President Bush respectfully criticized the Supreme Court’s war on terror decisions that disfavored his expansive view of presidential power.  President Obama criticized the Court’s Citizens United opinion during the State of the Union Address.  It is fair, and proper, that political leaders disagree with judges from time to time.  But criticism that seeks not merely to disagree with, but rather to de-legitimize, courts and judges does violence to the separation of powers and a politically independent judiciary.  This is, unfortunately, President Trump’s modus operandi.  He prefers to de-legitimize a critic or opponent, often ad hominem, rather than contest them on the merits.  It is the last refuge of a man who is out of his element on substance.

So, rather than make any one of the credible substantive arguments he could have made in defense of the Order, naturally the President chose instead to personally insult Judge James Robart as a “so-called judge” (never mind the judge’s unanimous confirmation by the Senate).  And perhaps worst of all, he then asserted that federal judges who opposed the Order would be held responsible for a terrorist attack – it is hard to think of a more insidious presidential assertion about the judiciary.

To worsen things, he also fired Acting Attorney General Sally Yates for her refusal to enforce the Order.  This was admittedly a somewhat more complicated matter.  Yates’s directive to the Justice Department would have been stronger had she set forth more precisely her legal arguments against the Order, arguments that almost surely would have been vindicated in the 9th Circuit’s opinion (though surely she could have articulated grounds for the Order’s defense, as well).  And there is no question that the President had the power to relieve her of her duties.  But firing her on the spot did little to inspire confidence in his judgment; it was a rash display of raw power that sent the wrong message and failed to consider the longer-term consequences.  Imagine now how Attorney General Sessions must feel.  General Sessions has been placed in an untenable position, and one that diminishes his capacity for independence from the President.  Even the most ardent defender of the Unitary Executive must shudder at the thought of an Attorney General who may have to choose between defending the Constitution and losing his job.

To some extent, the President’s constitutional schooling of late may include a lesson on a truth that his critics repeatedly noted during the campaign: words matter.  Lately, the President has been reminded of his disgraceful pander that called for a “complete and total shutdown of Muslims” entering the country.  But the problem goes even deeper.  The Government’s claim in litigation that the President should be entitled to great deference in matters of national security is a sound, if imperfect, claim.  But when giving deference to Presidents, it may well be that courts generally trust that the President is knowledgeable and credible on those matters, that his judgment is worthy of deference because he has thought seriously about the problem and vetted his decisions through the collective expertise of the military, intelligence, and security communities.  This President, by contrast, is the one who said he knows more than the generals about ISIS, appeared to suggest that the CIA was using the same tactics as the Nazis, heaps bizarre praise on Russia’s ruling dictator while heaping scorn on genuine American heroes like John McCain and John Lewis, and said our military leaders had been “reduced to rubble.”  And it is becoming increasingly clear that the vetting of this Order was shoddy, at best.   Is it any wonder, then, that informed jurists would be reluctant to defer to this President’s judgments?

Does all of this make the Trump Presidency hopeless?  It does not.  On the Executive Order, the Government retains considerable arguments in favor of its constitutionality – or at least in favor of substantial deference to the President’s national security decisions, in light of the limits on the judiciary’s expertise in such matters – though the prudent course may be to scrap the Order altogether and start over.  Judge Gorsuch will likely make an outstanding Supreme Court Justice.  Tax reform is a real possibility.  And this President may be able to play to his strengths in securing a major infrastructure package on a bipartisan basis.

But the President needs to right this ship in a hurry.  The collection of rash, impulsive, and even bitter statements over the past two weeks has created a portrait of a President who views his official powers as a one-way ratchet.  He has created the impression that the law must bend to his will, lest a tantrum follow.  Of course, Americans should have seen some of this coming.  But the people, through their representatives in the Electoral College, elected him anyway.  Perhaps, then, it is fitting to be reminded of Madison’s admonition in Federalist 51 on the importance of separated powers: “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Judge Gorsuch and the “mainstream”

There is plenty of commentary on Judge Neil Gorsuch, the President’s nominee for the Supreme Court.  I won’t repeat it here.  The President has had a rough couple of weeks, but last night he stopped the bleeding, even if only temporarily.  Judge Gorsuch appears to be an excellent, if rather conventional, choice.  Chalk one up for the hated Establishment.

Now the fun part begins.  Democrats are already promising a filibuster, which will no doubt prompt Republicans to consider the Nuclear Option against which they so aggressively argued in the past.  Hypocrisy will be alleged on each side.  We have seen this movie repeatedly.

But be on the lookout for the following term: “mainstream.”  Democrats will likely say that they are concerned with whether Judge Gorsuch’s views and decisions are outside of the “mainstream.”  And this will become a convenient rhetorical tool for opposition on the merits.  But, “mainstream” as compared to what?  As compared to the views of Liberals?  As compared to the decisions of William Brennan or Ruth Bader Ginsburg?  As compared to all circuit judges?  As compared to other judges on his circuit?

Federal appeals court judges do not have the same law development function that Supreme Court Justices do.  Except when addressing issues of first impression, federal appeals court judges are typically bound both by Supreme Court precedent, and the precedent of their circuits.  Moreover, circuit precedent can vary from one circuit to another.  What is the accepted rule of law in one circuit may not be the rule followed in another circuit.  There is no question that Judge Gorsuch has reached results with which the Left will disagree.  But that cannot possibly be the test of whether a judge’s views are extremist or radical.  Very often legal precedent dictates, or at least points strongly in the direction of, a result that will be contrary to the preferred views of the legal Left.  So if the “mainstream” is important (and, as I say, we must determine what that means), then it is important to ask, among other questions, whether Judge Gorsuch’s work is within the “mainstream” of existing decisional law from the Supreme Court and his own circuit.

Furthermore, this hardly seems like a standard that Senate Democrats would follow faithfully.  For example, Thurgood Marshall held the view that the death penalty was in all circumstances cruel and unusual punishment. That view was so far outside of the mainstream of American legal thought, only one other Justice in the history of the Supreme Court at the time actually agreed with it (Brennan).  Of course, over time, the view has gained greater adherence, but is still a minority view in the judiciary.  Are we to believe that Senator Schumer, for example, would have opposed Thurgood Marshall’s nomination to the Court?

Other Democrats may oppose Judge Gorsuch as simple revenge for the Republican-controlled Senate’s failure to consider Merrick Garland last year.  I covered that ground after Garland’s nomination, here and here and here. Of course, Democrats may forget that it was their Party that was complicit in a similar act earlier in the Court’s history.  Justice Robert Trimble died in 1828, and President John Quincy Adams nominated Whig U.S. Attorney John Crittenden to replace Trimble.  But before Crittenden could be confirmed, Adams lost re-election to Democrat Andrew Jackson, and the Jackson supporters in the Senate refused to confirm Crittenden during the lame-duck period.  Instead, President Jackson eventually filled the seat in 1829 with Postmaster General John McLean (and to add insult to injury, removed Crittenden as U.S. Attorney; McLean would later write a famous dissent in Dred Scott v. Sandford).  That historical note aside, however, it is hard to see how one can oppose Judge Gorsuch now simply by arguing that the seat should have been filled by Judge Garland last year.  And if the result on this nomination process angers Democratic voters, perhaps they will remember that the next time they have to decide whether to get to the polls on Election Day.

Finally, beware the “Robert Bork’s America” attack.  This refers to Senator Edward Kennedy’s notorious slander of Judge Bork on the Senate floor, and represents a now all-too-conventional method for opposing a nominee: recite a hyperbolic litany of horrific results for vulnerable people if the nominee is confirmed, not the least of which will be a return to “back-alley abortions.”  (Of course, it is hard to see how the “back-alley abortions” claim works here, as there would still be a 5-vote majority on the Court for abortion rights; Justice Scalia’s death did not affect the Court’s alignment on that issue).  This kind of rhetoric is among the lowest forms of political dissent from a nomination, and it is this kind of rhetoric that should be considered out of the mainstream.  But don’t count it out this time.

Given the anger and impressive mobilization of the political Left in light of President Trump’s ascendancy, Senate Democrats will likely slouch toward any argument they can muster to oppose Judge Gorsuch, who surely knows of the bloody battle that is coming.  None of it is his fault, and he is likely to survive it anyway.   But “out of the mainstream”?  Hardly.

 

“Send in the Feds”? Don’t bother, they’re here.

Keeping up with President Trump’s Twitter activity is a full-time job, and I don’t have that kind of time.  So I rarely find it useful to comment on any of his Tweets.  I could not, however, resist responding to one from late last night, in which he makes a statement about the violence plaguing Chicago: “If Chicago doesn’t fix the horrible ‘carnage’ going on . . . I will send in the Feds!”

What does that even mean?

Chicago – a great American city by any definition – is home to a busy United States Attorneys Office, and field offices for the FBI, DEA, and ATF, among others.  Federal prosecutors and other law enforcement personnel in Chicagoland – among the brightest and most talented in the Nation – routinely work on violent criminal cases within federal jurisdiction.  Even a cursory look at the press releases for these federal offices shows that they have been busy using federal resources to fight Chicago’s dire crime problem (which seems connected in substantial part to a drug trafficking and gang problem).  See, e.g., here, and here, and here, and here, and here, and here.

In other words, what kind of federal role in Chicago does President Trump envision that does not already exist there?

One possibility is that he is not talking about policing and prosecution at all, but rather is talking about using National Guard troops.  That would raise serious legal issues, if the troops are called upon to engage in civilian law enforcement.  The image of uniformed military and even of military weaponry constantly patrolling Chicago’s streets is not an image of America becoming great again.  Another possibility is that he is talking about sending more federal money or other resources to Chicago to help combat the problem.  That would be welcome news to city and state officials in Chicago, I imagine (see a Chicago Tribune piece here).  But that is not typically what one would think of when hearing “send in the Feds,” a phrase that suggests a substantial physical presence by federal officials.  Perhaps even more agents and AUSAs could be placed there; perhaps federal drug and gang task forces there could be enhanced and better funded.  I would favor that move.  But let’s be clear: that’s not sending in the feds – that’s sending in more Feds.

Finally, while there is certainly a robust federal law enforcement role where the violent criminal activity involves guns, gangs, and/or drugs, does the President believe that the federal government should supplant the role of city and state officials in ordinary law enforcement involving street crime merely because the city and state are failing to curb the crime rate?  It is true that federal criminal law offers an expansive role for the Feds in this regard, but a more expensive role for the federal government is not something that conservatives and Republicans have typically defended, preferring instead that most criminal law enforcement be done at the state and local levels.  I can’t imagine intellectually honest conservatives going along with the idea of a wholesale federalization of criminal law enforcement in a major American city.

So if the President simply means ensuring a federal role in cooperation with the city and state role, then I must ask again: how is that different from the existing situation?

The President’s Tweet therefore raise two distinct questions.  First, is he even aware of, or does he understand, the rather extensive law enforcement role of the federal government in Chicago already?  And second, how does he envision the federal role there – or in other cities – in the scheme of constitutional federalism?

Unlike others who have been critical of the President’s focus on crime, I applaud the President for tackling this issue at a time when “criminal justice reform” rhetoric has often obscured a discussion of the need for aggressive approaches to criminal violence (including gun violence and drug trafficking, two things that often go together and that are plaguing Chicago).  And there is no question that the federal criminal law provides legal mechanisms for an aggressive federal approach to the kinds of violent crime that Chicago has been experiencing.  But those mechanisms are already at work in Chicago.  Maybe they should be even more robust.  But perhaps the President could be clearer about his federal prosecutorial priorities and his understanding of the Constitution’s limits on enforcing them.

CREW v. Trump and the Emoluments Clauses

The first formal Emoluments Clause lawsuit was filed today in federal district court in Manhattan.  The suit was brought by the group Citizens for Responsibility and Ethics in Washington (CREW), and it sets forth a detailed list of the President’s business dealings that, CREW claims, now represent violations of the Constitution.  I would note that the lawsuit alleges violations of both the Foreign Emoluments Clause (Article I, section 9) and the less-noticed Domestic Emoluments Clause (Article II, section 1), which forbids the President from receiving any emolument, other than his compensation, from the United States or from any State.  The complaint in CREW v. Trump is here.

The President has said that the suit lacks merit (Politico story here).  But before getting to the merits, there are two threshold problems with the suit.  The first and most obvious problem is the question of whether CREW has Article III standing.  As the complaint makes clear, CREW has an argument for standing.  But Josh Blackman, among others, offers a strong counterargument (Blackman’s post, embedded in the Politico piece, is here).  Even if CREW lacks standing, however, one wonders whether someone with a better claim to standing will move forward with a suit of his or her own.

The second threshold issue is whether the President is someone who holds an “office of Profit or Trust” for purposes of the Foreign Emoluments Clause.  There is an ongoing debate among constitutional scholars as to whether the President is covered by that provision.  Michael Stern has a good description of the debate here at Point of Order; Will Baude summarizes his views at VC here.  Of course, there is no doubt that the President is covered by the Domestic Emoluments Clause.

I would note that the suit filed today is not being filed by crackpots.  There are serious – indeed, mighty – names in the legal profession attached to this case.  Even if this particular suit does not survive, another suit may well be forthcoming.

 

 

Day One

I have gone quiet for awhile.  It seems like everything I could say has been said by the various talking heads throughout the 24-hour news cycle.  And my work responsibilities have prevented me from having much time to write, here or elsewhere.  But a few thoughts might be appropriate here on Inauguration Day.

I never voted for Barack Obama.  I believed John McCain and Mitt Romney to be better suited to the presidency, and I had too many disagreements with Obama on substance.  But I never understood why Republicans treated him with such disdain and disrespect.  I attribute most of that to the bare-knuckle, zero-sum game of American politics in which every member of the opposing party must be painted, characterized, demonized, and rejected.  I think very little of that brand of politics, and regret that it dominates so much of American life today.  I also think President Obama did little to endear himself to Republicans, especially in the early years when the Blame Bush strategy seemed to be stamped to his team’s every move.  Still, President Obama was an elegant, thoughtful, intelligent man who brought his own brand of gravitas to the office.  I agreed with him at times; disagreed more often.  But he tackled difficult moments with grace and understanding, and demonstrated respect for his office and his role in American life.  In turn, he has earned the respect and gratitude of Americans, even those of us who questioned and criticized him at times.

I am hopeful that President Trump will embrace the constitutional presidency, even more strongly than did his predecessor.  Day One did not raise my confidence in that.  His uninspiring inaugural address made no mention – not one – of the Constitution, or even of the Congress (constitutional references were a regular practice among early inaugural addresses, but have been largely abandoned by contemporary chief executives).  “America First” is a catchy campaign slogan but it is not a policy.  More importantly, it conveys no relationship of the president to his place in our system of constitutional government, nor does it convey anything about the role of constitutional government in securing liberty, justice, and tolerable order for the American people to whom the President pledged his loyalty.  He said his oath was an oath of allegiance to all Americans, but neglected to note that it is chiefly an oath of fidelity to the Constitution.  The address was not memorable, at least not for the right reasons.

The most important thing that happened on November 8 was not the election of Donald Trump, important as that was.  Rather, it was the election of Republican majorities in both houses of Congress.  The President’s pre-inaugural actions, including his cabinet choices, would perhaps have looked much different if Democrats had won one or both chambers.  The burden is now on congressional Republicans to assert the prerogatives of their respective institutions, rather than serve as errand boys for the President.  Standing up to the President will be much easier if the President’s approval numbers remain low.  Their challenge will be to defend their own institutional roles even if the President becomes more popular.  The meaning of the Constitution does not change with the President’s poll numbers.

President Trump has the chance to deploy his notorious private charm in service of the presidency’s soft powers, persuading allies and adversaries alike.  That can be useful.  But he should not confuse the soft powers of the office with the hard ones, those set forth in the formal arrangements of the Constitution.  And it is his fidelity to those arrangements – rather than his Party affiliation – that conservative constitutionalists, and congressional Republicans, should be giving their attention.