Dear Donald, The Constitution is Supposed to Constrain You

It is, admittedly, a paradoxical concept, the enabling constraint. But most reasonably bright undergraduates can master it. Human existence is full of them. Language is an example: it allows us to communicate with each other, but it only allows to talk about things we have words for. The solution to this problem is easy sometimes — just make up a new word when a new thing comes along, as in “internet.” Other times, humans confront ideas or feelings they just can’t really put into words. We know you’re not big on ideas, Donald, so you may not have had this problem, but lots of other humans have.

Another example is the United States Constitution. The men who wrote it perceived that the government of the (barely) United States of America was not powerful enough to get the job done, so they wanted to create a new government that was more powerful. But they had just fought a long war against the world’s leading military power to throw off a government that they considered too powerful in important ways, so they wanted to keep the new government from doing to them what the old government had done.

One of the key flaws in the old government was that it had a king. The king thought he should be able to order everyone else around just because he was lucky enough to have been born king. Sound familiar? The authors of the Constitution thus created a government with a President, who is not a king — he serves limited terms and his peers, his equals, choose him from among an array of persons who want the job — but does have certain of the powers of a king. He is in charge of the military in the new government, he represents the nation to other nations, and he has the power to sign or veto bills that Congress, a “coequal” branch of government (as even the White House still admits, although maybe they just haven’t found it to take it down yet), enact.

There are some things kings may do that Presidents may not, however. The Founders did that quite deliberately. The Constitution identifies a number of rights, which are supposed to be absolute limits on the power of government — things no government official may do. We tend to think immediately of the Bill of Rights, which is not wrong — the Bill of Rights is in fact chockablock with rights, running all over the place! — but there are some in the body of the Constitution as well. It defines the circumstances under which government may suspend the “privilege of the writ of habeas corpus,” which is really more of a right, the word “privilege” notwithstanding. Government may not enact ex post facto laws, or laws that make crimes retroactive, such that conduct that was legal at the time becomes illegal after the fact. It may not enact bills of attainder, or laws declaring that a person is inherently unlawful just for being who s/he is. It may not grant titles of nobility, so we have no fear of Sir Paul in the United States. Were these guys geniuses, or what?

Besides rights, the power of the United States government is, or is supposed to be, limited by its structure, with a thing we call “separation of powers.” At the time of the writing of the Constitution, convention identified three main powers of government. We can clearly see this in the language of the Constitution. Article I, defining Congress, starts out, “All legislative power herein granted….” The Constitution also gives power to a President, and to a judiciary, but notice, this necessarily means that both the Congress and the judiciary have powers of their own. In other words, the authors of the Constitution did not want the President to have all of the power. One power the President does not have is the power to make laws. The President does have the power to issue executive orders, which are mostly for the purpose of deciding how the federal government should operate. There is a thing called “nondelegation doctrine,” one part of which suggests that executive orders violate the Constitution by giving the power to legislate to the President, when his sole power in the legislative process under the Constitution is supposed to be to sign or veto bills that Congress passes, but the courts have long recognized that the complexity of government makes administrative agencies, and thus direction of them by executive orders, necessary.

This is a simple concept that most school children learn. Apparently the Donald missed it somewhere along the way. Soon after he learned that a federal judge had issued a temporary restraining order, um, banning continued enforcement of his, um, Muslim ban, the so-called President tweeted, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” He used an exclamation point, so he must be right!

The obvious, to everyone except the Donald, anyway, problem with this claim is that the judge was just doing what judges do: deciding a legal dispute. The Donald thinks the law should do something, and officials in at least two states, but likely others as well, believe that, at a minimum, even if the law should do that, the Donald’s way of doing it violates the Constitution. The famous Chief Justice of the Supreme Court, John Marshall, explained in 1803 why judicial review of laws is necessary, even though the Constitution says nothing about it. It does say, “This Constitution…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Article VI, paragraph 2. Justice Marshall explained that, given the task of judges to decide legal disputes, they sometimes have to choose between competing laws. The Constitution says it is the “supreme law of the land,” and even if it didn’t, the whole point of a constitution is to define how law and politics will work in a given society. So, once one has a constitution, either it trumps (!) all other laws, or there’s no point in having it.

The Donald demonstrated with another tweet that he does not understand the issue. He wrote, “When a country is no longer able to say who can, and who cannot , come in & out, especially for reasons of safety &.security — big trouble!” No one has stated that the country is “no longer able to say who can, and who cannot” enter or leave. The courts have only asserted, which should be patently obvious to any intelligent, well informed observer, that it must do so in a manner that is consistent with the Constitution, which is just how it must do everything.

We have no way of knowing, right now, anyway, who exactly instructed them to make this argument, but the lawyers representing the President went so far as to claim, not just that the courts should refrain from interfering with enforcement of the Muslim ban, but that they should not even hear the case at all. Perforce, the trial judge rejected this claim — he issued a temporary restraining order prohibiting enforcement of the ban. Similarly, the Ninth Circuit Court of Appeals rejected this argument.

There were signs from the beginning that the Donald did not understand this whole Constitution thingy, either in terms of specific rights, or in terms of the idea of separation of powers. Even before he announced his campaign, he already called for a ban on Muslims entering the country, seemingly unaware that such a proposal plainly violates the U.S. Constitution. The only good thing about the Donald’s ignorance is that his foolish comments about a “Muslim ban” are available as evidence that courts use to justify continuing to look more closely at the ban while continuing to prohibit its enforcement.

Happily, and unsurprisingly, federal judges have a much stronger understanding of the principles of U.S. government than does the Donald.

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