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Three Worrisome Constitutional Trends

Court-bashing, norm-skirting, bureaucrat-purging.
March 9, 2020
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Those of us who care about the Constitution—who appreciate not just its importance to our system of government but to the whole regime of ordered liberty that we enjoy, and who understand its deep connection to the American character—know that it always needs watchful caretakers. It gives us “a republic,” as Ben Franklin famously said, “if [we] can keep it.” The Constitution isn’t like an old Ronco rotisserie oven; you can’t just “set it and forget it.” It needs constant vigilance. Those among the Founders who studied political history understood this—which is why the president swears an oath to “preserve, protect and defend” the Constitution.

It’s worth taking a moment to examine three recent, worrisome trends in politics and governance, and to put them in context—to see them not just as heated political and policy disputes, but as warnings of danger for our constitutional system, and possibly even threats to the sustainability of the republic itself.

1.) Going after the courts.

Addressing a rally in front of the Supreme Court last week, Senator Chuck Schumer (D-N.Y.) blustered about two sitting Supreme Court justices: “You have released the whirlwind,” he said, “and you will pay the price.” The remarks elicited a rebuke from Chief Justice John Roberts, who called them “threatening,” “inappropriate,” and “dangerous.” (He could have added nonsensical and borderline illiterate.)

The clash over Schumer’s remarks followed close on the heels of President Donald Trump’s criticism of two other Supreme Court justices the previous week; the president didn’t use explicitly threatening language but suggested that those two justices recuse themselves from cases involving him.

There is plenty of precedent for robust criticism of the courts and their rulings by Congress and the president. This winter marks a decade since President Barack Obama criticized a Supreme Court decision (Citizens United) during a State of the Union address, with six of the Court’s justices sitting in the front row; at the time, it was widely considered a breach of decorum. And Franklin Roosevelt’s administration fought so often and so momentously with the Court that the public took to hanging justices in effigy. FDR wanted the Court’s unpopularity to build so he could pass his “court-packing” plan, which would have stopped the Court from overturning his ambitious (and constitutionally dubious) New Deal programs.

Arguably the worst clash between a president and the Supreme Court came a century before FDR. In 1832, the administration of Andrew Jackson got into a legal dispute over the resettlement of Cherokees. Chief Justice John Marshall—by this point in his seventies—authored a majority ruling in favor of the Cherokees. Jackson is said to have responded, “John Marshall has made his decision; now let him enforce it.” His actual language was less direct, but the meaning was the same: He refused to follow the Court’s ruling. What followed was the Trail of Tears, one of the darkest chapters in American history. Americans had more faith in Jackson than in the constitutional system, so his brazen power play went unpunished by either Congress or the voters—indeed, later that year, Americans overwhelmingly voted to reelect him.

Robust criticism of the Supreme Court—and the broader judiciary—by elected officials is a normal, even healthy, part of our constitutional order. When courts make bad decisions, those decisions should be criticized. And when judges act like legislators instead of judges, they leave themselves open to pointed political criticism. There is much more that could be said about restraining a judiciary that tends toward activism.

But some modes of criticism are inappropriate. Schumer’s recent remarks went too far, and although he has since walked them back, he ought to apologize explicitly and explain much more fully. Meanwhile, Trump’s recent remarks about recusal are mild compared to many of his previous bizarre and angry attacks on the judiciary. In 2016, he accused a federal judge, Gonzalo Curiel, of bias and falsely called the Indiana-born Curiel a “Mexican.” In 2018, when a ruling didn’t go his way, he said “That’s not law. This was an Obama judge”—drawing another of Chief Justice Roberts’s rare responses. (Trump, as is his wont, only doubled down.) When Trump was unhappy with 9th Circuit rulings, he said he would “absolutely” consider breaking up the circuit. This year, he repeatedly slammed the federal judge who oversaw the trial of his erstwhile adviser Roger Stone.

How can we distinguish between legitimate and inappropriate public criticism of the courts? It is acceptable to criticize judicial rulings and reasoning. It is acceptable to criticize bad conduct by judges (after all, the Constitution stipulates, somewhat ambiguously, that federal judges “shall hold their Offices during good Behavior”).

But it is unacceptable to respond to judicial decisions with ad hominem attacks, or to threaten or incite violence against judges. It is unacceptable to erode the legitimacy of the courts by repeated, ill-founded accusations of bias. It is unacceptable to hurl obloquies at judges in hopes of putting public pressure on them. And it is unacceptable to encourage defiance of the courts.

So, for example, many conservatives criticized the Supreme Court’s controversial Obergefell decision in 2015. When those criticisms focused on the Court’s decision and reasoning, they were acceptable. But former Arkansas governor Mike Huckabee and Senator Ted Cruz both endorsed defying the Supreme Court. That is unacceptable.

2.) Chucking constitutional and procedural norms.

In requiring presidents and members of Congress to swear to defend the Constitution, we put them in an unusual position. On one hand, they are partisans, acting in furtherance of their beliefs, acting on behalf of their constituents, acting on the behest of their parties and various interests. But at the same time, we wish them to be institutionalists, to care about the offices they hold, to protect their prerogatives while not overstepping them, and to act in accordance with established procedures and precedents. We ask them, in short, to be both players and referees.

But nowadays, institutionalists are in short supply. One implication of this fact is that Congress, the first branch of government, is far weaker than it should be vis-à-vis the executive branch. Another is that our political leaders feel freed up to act solely as partisans, taking unconstitutional actions—or actions that violate norms—in order to achieve their desired policy outcomes.

Look at President Obama’s record. In 2010, he said that he couldn’t issue an executive order to defer deporting DREAMers: “I am president, I am not king. I can’t do these things just by myself.” (It wasn’t the only time he articulated that correct point.) But in 2012, he issued a presidential memorandum unilaterally creating the DACA policy that allowed many illegal immigrants to remain in the United States; he unilaterally expanded the policy in 2014.

Another Obama-era example: The 2015 Iran deal. Obama administration officials, including President Obama himself, compared Republican lawmakers who opposed the deal with fanatic hardliners in Iran, suggesting that those Republicans had more in common with Iranian hardliners than with their Democratic colleagues. Setting aside the actual substance of the agreement with Iran, its legal basis was unusual. Unlike a real treaty, which requires the approval of a Senate supermajority, the deal with Iran was structured as a commitment of the president; it didn’t carry the force of law and in fact could only be considered legal in the United States so long as it wasn’t considered binding.

Speaking of treaties, the Obama administration also implemented the 2016 Paris climate agreement as an executive agreement rather than as a treaty, thereby again avoiding the need for formal ratification.

Even setting aside the many constitutional misdeeds connected to the recent impeachment, President Trump has more than once used his powers inappropriately to accomplish his policy goals. The most egregious example is arguably his decision last year to declare the situation at the border with Mexico a “national emergency”—a decision that allowed him to take money out of the nation’s military budget and instead spent it on building a border wall (the same wall that Mexico was supposedly going to pay for). In other words, it allowed the president to snatch the power of the purse strings from Congress.

In all these instances—and many others that could be named—the policy ends were used to justify unsavory and unusual procedural means. It might seem like the harms are only temporary; after all, each of the three Obama examples above was terminated by his successor in the White House, just as the next Democratic president will presumably undo some Trump executive actions. But the real damage is to our constitutional order. The norms that your party is tossing aside today, and the constitutional procedures that your party is failing to observe punctiliously, will no longer be there to protect you when your party is out of power.

3.) The Trumpification of the executive branch.

For the last worrying trend, go read the extensive reported essay George Packer just published in The Atlantic. It is, in part, about the Trump administration’s use of executive agencies and departments for personal and partisan political purposes. A taste:

Trump has largely succeeded in making the executive branch work on his personal behalf. He hasn’t done it by figuring out how to operate the bureaucratic levers of power, or by installing leaders with a vision of policy that he shares, or by channeling a popular groundswell into government action. He’s done it by punishing perceived enemies, co‑opting craven allies, and driving out career officials of competence and integrity. The result is a thin layer of political loyalists on top of a cowed bureaucracy.

Justice and State were obvious targets for Trump, but the rest of the executive branch is being similarly, if more quietly, bent to his will. One of every 14 political appointees in the Trump administration is a lobbyist; they largely run domestic policy. Trump’s biggest donors now have easy access to agency heads and to the president himself, as they swell his reelection coffers. In the last quarter of 2019, while being impeached, Trump raised nearly $50 million. His corruption of power, unprecedented in recent American history, only compounds the money corruption that first created the swamp.

The so-called “adults in the room” failed utterly to stop this trend. (In fact, some made it worse, like former secretary of state Rex Tillerson, who made it his mission to diminish the power and reduce the size of the diplomatic corps, pushing many seasoned diplomats out of the department.)

And now, as Packer writes, “the adults have all left the room—saying just about nothing on their way out to alert the country to the peril—while Trump is still there.”

Shay Khatiri

Shay Khatiri is a graduate student of Strategic Studies at Johns Hopkins University, School of Advanced International Studies. He grew up in Iran and left the country in 2011. He is currently seeking political asylum in the United States. Follow him @ShayKhatiri.