CONSTITUTIONAL CRISIS

by Bruce Dunlavy
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In 1789, the Constitution of the United States, having been ratified by the requisite nine States, became effective.

It was an unprecedented document, in that for the first time it spelled out a form of government that would be ordained, directed, and executed subject to laws. Laws and laws alone would be the supreme power, independent of the whims of a monarch, the desires of inherited political power, or the influence of foreign money.

The Constitution was to be an improvement on the Articles of Confederation, which had proved too centrally weak to provide effective united government. The new legislature was different from England’s. Although, like Parliament, it consisted of an elected lower house and an appointed upper house (Senators originally being chosen by the State legislatures), the upper house was composed of ordinary men, not aristocrats who gained their seats only through birthright or appointment by the king.

No one had conceived of an office like a president before. An individual administrator of the executive branch, but not a hereditary monarch. A person chosen by the member States, which might permit voting by the people as a part of the process. One who would relinquish power when a successor was elected. One subject to laws not of his own making, but made by the representatives of the people.

The administrative presidency was Constitutionally designed to be a rather weak office, subordinated in specific ways to the lawmaking branch, particularly the Senate. Perhaps the most important power removed from the executive was the one the Framers most feared in the hands of one person – the power to declare and undertake wars. The experiences of European monarchies had for centuries been marked by kings and princes arbitrarily amassing troops, levying onerous taxes to support them, and sending them into protracted wars against other monarchies for purposes rarely beneficial – and often detrimental – to the ordinary people who were expected to pay for them with their money and blood.

The judicial branch, as in England, was to be independent of the other two branches once it had been put into place. The judges would hold power “during good behavior” and not subject to recall by their appointing authorities. Removal would have to be carried out as in the case of executive branch members, by an impeachment process executed strictly by the legislative branch.

These “checks and balances,” as they came to be known, were intended to create a system in which no single branch – neither the legislature (representative, in a democratic republic, of the people), nor the executive (administrative, with monarchical powers curtailed and subject to the dictates of established laws), nor the judiciary (its influence curtailed by limitations on the kinds of cases it could hear and decide) – would be paramount.

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Even those paragons of political acuity, the Founding Fathers, were only human. They could not allow for every contingency or prophesy what complications would arise in succeeding decades and centuries. For the vast majority of the next 240 years, however, the system managed quite well. It did so because of a civil compact that assumed everyone in positions of authority would do what they were required to do under the law. They would be expected to know the law and act in good faith to obey it. Assurances were made that every official in the Federal and State governments, whether elected or appointed, would be required under Article VI, Section 3, to pledge an oath or affirmation to uphold the Constitution. The president, specifically, was enjoined in Article II to “preserve, protect, and defend the Constitution of the United States.”

Preserving, protecting, and defending the Constitution means adhering to its directives in both letter and spirit. To borrow a Star Trek designation, the Prime Directive of the Constitution would be to ensure that the branches of government remain equal, that they not attempt to exceed their Constitutional authority, and that they not seek to usurp or dismiss the authority of the other branches.

All this works at least as well as the Founding Fathers could have hoped, as long as the occupants of Federal offices place their Constitutional duties ahead of their party, their position, or their ambition. Like most organizations, the U.S. government works effectively as long as all persons involved know what they’re supposed to do and act accordingly. Of course, there have been stumbles along the way.

In 1868, President Andrew Johnson was impeached by the House overwhelmingly, and escaped conviction in the Senate when the final tally was one vote short of the two-thirds needed for conviction. The actions for which Johnson was impeached were clearly legal and the impeachment on those grounds clearly illegitimate. Johnson was primarily accused of violating the Tenure of Office Act of 1867, which was itself unconstitutional.

The Johnson impeachment exposed a fundamental weakness in the Constitution’s tripartite government. In practice, the legislative branch has the authority to remove the head of the executive branch for any reason or no reason. This was seen again in the impeachment of Bill Clinton in 1998. Although a case could certainly be made that the things Clinton had done were impeachable offenses, they were really just window-dressing for the House’s impeaching the president for political reasons just because they could. Everyone knew that there would be no Senate conviction.

The only time in U.S. history when a president was (nearly) impeached for completely legitimate reasons – and certainly would have been convicted had he not resigned – was in 1974, when Richard Nixon was driven from office. The evidence that made it certain was obtained from tape recordings Nixon had made throughout his time in office. When Congress subpoenaed those tapes, Nixon went to the courts, claiming “executive privilege” exempted him from having to turn over the materials. The U.S. Supreme Court, in a unanimous verdict, ordered him to obey the subpoena. Nixon complied.

Now, let us pose this question: what if Nixon had not done so? What if he had said, “Make me”? There lies a crucial issue in Constitutional analysis. What happens when one branch or the other does not do what it is supposed to do? In the SCOTUS case of Worcester v. Georgia (1832), which enjoined States from violating the rights of American Indian tribes (specifically the Cherokee in Georgia, but applicable to all States), President Andrew Jackson refused to enforce the decision, observing that SCOTUS had no way to “coerce Georgia to yield to its mandate.”  As Alexander Hamilton had predicted in Federalist 78, the judiciary has neither the sword nor the purse, only judgment, and must rely on at least one of the other branches to put court decisions into action. With this fundamental weakness in the balance of powers doctrine fulsomely exposed, Georgia went ahead with its depredations.

The current occupant of the Oval Office, Donald Trump, is the sort of person who could engage in that kind of response. In fact, he is doing so now, by such methods as calling for impeachment of opposition Members of the House (unconstitutional) and by speculating that he could go to the courts to have the impeachment process against him stopped (also unconstitutional).

One of the potential offenses for which impeachment is being considered is violation of the Constitution’s “emoluments” clause, which forbids government officials to profit from their office by accepting gifts or payments from foreign countries. Trump’s response is not to deny that he has done so, but to call the emoluments clause “phony.” That is calling the Constitution itself “phony.” It attacks the foundation our system’s legitimacy.

If the president can decide that the Constitution means what it says only when it says what he means, then the Constitution doesn’t mean anything. Trump is attempting to place himself above the law, since the Constitution, in its Article VI, defines itself as “the supreme Law of the Land” to which all others must adhere. Trump’s misguided contentions are the very opposite of the president’s oath to “preserve, protect, and defend the Constitution of the United States.”