Helpful commentary on the constitutionality of Syrian airstrikes

Despite the relative popularity of the President’s use of airstrikes last week in Syria, the argument continues as to whether the President’s action was constitutionally problematic.  The Congress has not debated, much less approved, a new authorization for force in Syria, whether against the Syrian government or ISIL (and it is notable that we have now taken hostile action against both sides of the conflict there).  And there is no question that the President could not rely upon the existing AUMFs for last week’s airstrikes.  Therefore, his only reservoir of power for this action is Article II of the Constitution.  The President’s report to the Congress pursuant to the War Powers Act is here.

The folks at Lawfare have typically excellent commentary on the matter.

John Bellinger’s piece on the War Powers Report is here.

Andrew Kent’s piece is here (with a good discussion of originalist views on war powers allocation).

Jack Goldsmith’s piece is here.

If the President has a longer-term military strategy in Syria, his ability to engage there without approval from Congress is, legally, probably substantially limited.  But because a federal court is unlikely to police the allocation of constitutional war powers, it is for Congress to defend its own prerogatives.  Even without seeing a plan from the President, Congress should long ago have been debating the American military role in the Syrian conflict, or, at a minimum, the scope of presidential powers to attack ISIL.  As long as Congress remains silent, however, it will continue to send a signal to this and other Presidents that it acquiesces in any military action.  It is possible that members of Congress are reluctant to take a position on the use of force abroad, fearing being stuck with their vote if the mission goes poorly.  But the use of American military force — and the blood and treasure of the American people — is not a matter on which the legislative branch should be perpetually silent.

 

Is Russia an “enemy”?

The NYT posted an intriguing opinion piece by Nicholas Kristof this week, comparing the Trump-Russia controversy with the controversy over revelations that President Nixon tried to sabotage diplomatic efforts to end the Vietnam War.  Kristof explores the Trump campaign’s Russia connections, conceding that no smoking gun yet exists but piling up the circumstantial evidence as he makes the case for a robust investigation.  He asks, straightforwardly: “Was there treason?”  He ends by quoting historian Douglas Brinkley, who recently said, “There’s a smell of treason in the air.”

Let’s concede that the matter is still wide open, and that no direct evidence of criminality or collusion has yet been made public, if it exists.  But let us take the theory in its current incarnation: operatives associated with the Trump campaign, the theory goes, may have colluded with Russian operatives to obtain and disseminate information about Hillary Clinton that would weaken her candidacy and strengthen Trump’s chances of winning (or, to be more precise, strengthen Clinton’s chances of losing, which is what Russia really wanted).  This may have been done on Trump’s own orders, or with his knowledge (or, at a minimum, his willful blindness).  It may have even involved complicity in broader Russian efforts to affect our political system.  In other words, this theory of the case goes, the Trump campaign may have colluded with agents of an adversarial foreign power to win an election and assist that foreign power in getting the result it desired.

If this theory — and it is as yet only conjecture — plays out as true, then Kristof’s question is a compelling one.  Is this treason?  I have written before that treason is an oft-used epithet, often describing conduct that is serious and compromises American security or values in some way, but is not — legally speaking — treasonous.  Recall that Article III of the Constitution tells us that American treason consists only of levying war against the United States, or adhering to its enemies, giving them aid and comfort.  Although one can argue about the ways in which modern warfare has changed, as a matter of original understanding of the Constitution, I think it unlikely that we would say this kind of collusion constitutes “levying war.”  The only other option then, is what I have called “Adherence Treason,” the giving of aid and comfort to the enemy, with the intent to betray the United States.

Let’s assume, purely hypothetically, that Trump, or someone from his team, provided assistance to the Russians in their efforts to influence the presidential campaign.  And let us assume that they did so with the intent to betray the United States, presumably by undermining the processes of American democracy to the benefit of a private individual (Trump) and of the Russian government, whose leadership despised Clinton and did not want Clinton to win the presidency.  This leaves a critical problem if “treason” is the right description of what occurred: is Russia an enemy of the United States?

Aiding a foreign power may violate some other law, but it is not “treason” unless the aid is given with an intent to betray the United States and the foreign power is an “enemy.”  My current research is exploring this problem, though I confess that when I began exploring it, I did so in the context of the Islamic State and al Qaeda, wondering whether the original understanding of “enemy” in the Treason Clause included non-state actors or those against whom no formal declaration of war has been issued.  We have not formally declared war against ISIL.  Indeed, we have not even debated (much less passed) a new authorization for the use of force to target ISIL (we should do that).  But we have engaged in hostile action against ISIL, and it has engaged in hostile action against us.  Perhaps that is enough to make ISIL an “enemy” and to prosecute for treason those with allegiance to us who give aid and comfort to ISIL.

But what about Russia?  We have had a diplomatic relationship with Russia (though that relationship has recently been a frosty one, it seems) and are not engaged in military violence or other hostilities against the Russians.  Yet senior American law enforcement, intelligence, and military leaders confirm that Russia is an “adversary” of the United States.  Defense Secretary James Mattis made such an observation earlier this year (see here), before he joined the cabinet.  Just this past week, at the House Intelligence Committee hearing during which FBI Director James Comey and NSA Director Admiral Mike Rogers testified, both men acknowledged that Russia is an adversary of the United States.  The critical question for purposes of the Treason Clause, though, is whether an “adversary” is the same thing as an “enemy.”

The modern dictionary makes these two words synonyms, as does Samuel Johnson’s Dictionary of 1755 (see here). But does the Constitution?  Are armed hostilities necessary to make a foreign power an “enemy”?  Does the Constitution account for the modern ways in which non-violent action by a foreign power can corrupt and harm American persons and institutions?  Perhaps this is an example of how the original public meaning of a word, as of 1787, can still apply to contemporary problems.

I sympathize with those wishing to further explore the Trump campaign’s relationships with the Russian government, or with private individuals working under the influence of the Russian government.  I also think such an investigation should fully explore the intelligence, military, diplomatic, and criminal law consequences of any such relationships that are uncovered.  Of course, maybe there is no there there.  But even if there is, whether such conduct would constitute treason depends upon satisfying the constitutionally-defined elements of that offense.  To make it treason, we must be prepared to identify Russia not just as an adversary, but as an “enemy,” as that term is understood not just in common parlance but in the Constitution.  I suspect that many Americans and American political leaders are prepared to say this.  But is the Trump Administration?

 

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.

 

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.

 

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.