Trump tests the Constitution’s limits
Summary
It’s up to officials in the three branches of government to keep the president in line.
No wonder President-elect Trump demanded that his own party let him make recess appointments. It would allow his more unpopular Cabinet nominees, including the shockingly unfit Matt Gaetz, to bypass the normal Senate confirmation process.
The Journal’s editorial board termed Mr. Trump’s recess-appointment scheme not “unconstitutional" but “anti-constitutional." The board rightly noted that although this plan could be carried out consistent with the Constitution’s language, it would violate the system of checks and balances that undergirds the constitutional structure.
Distribution of power among the branches of government is critical. It’s the Constitution’s principal means for preventing tyranny, which James Madison defined in Federalist No. 47 as the “accumulation of all powers, legislative, executive, and judiciary, in the same hands."
In the past two weeks, Mr. Trump has announced a series of plans—including the recess-appointment scheme—indicating an intent to enlarge presidential powers beyond those of any peacetime president in U.S. history. The question is whether the legislative and judicial branches will resist.
Madison assumed that human nature would lead officials in different institutions to resist encroachments by the others. As he argued in Federalist No. 51, through the Constitution, “ambition must be made to counteract ambition." Senators would defend the prerogatives of their institution, as would everyone else in the federal government.
These prerogatives include helping to create the executive branch, which rests on legislation enacted by Congress and signed by the president. Cabinet departments are partially executive but also partly legislative. Officials don’t hold these posts solely to do the president’s bidding.
The question is whether today’s polarized party system has fatally weakened the Madisonian design. In this new system, legislators’ fealty to the president too often leads them to ignore their constitutional duties—and the electorate punishes lawmakers who insist that the president adhere to constitutional norms.
The Senate’s advice-and-consent authority is critical to the balance of powers. Incoming Senate Majority Leader John Thune and his fellow Republican senators can choose to surrender this power by agreeing to adjourn so that Mr. Trump could make his appointments without their consent. But doing so would be a shameful act and a step toward unchecked presidential power.
Mr. Trump’s aspirations don’t stop with complete control over appointments. Credible reports suggest he also wants to override Congress’s power of the purse by impounding—that is, refusing to spend—funds that have been appropriated for specific purposes. He may ask Congress to repeal a 1974 act that prohibits impoundment. If Congress refuses to do so, he may impound funds anyway and argue in court that the 1974 law is unconstitutional.
The matter would likely end up at the Supreme Court. For Mr. Trump to prevail there, the court would have to do more than simply hold the 1974 act unconstitutional. It would also have to overrule Train v. City of New York (1975), which held that impoundment is illegal unless the underlying legislation specifically authorizes it.
It remains to be seen whether the court would countenance this expansion of presidential power. But after this summer’s Trump v. U.S. decision, in which the court derived a broad doctrine of presidential immunity from the penumbras and emanations of the Constitution, anything seems possible.
This brings us to the third element of Mr. Trump’s power grab: his attempt to exercise direct control over the U.S. military. The president-elect is reportedly considering an executive order that would fast-track the removal of generals and admirals found to be “lacking in requisite leadership qualities." While it’s unclear what this phrase means, it should be read in the context of Mr. Trump’s vow to fire “woke" military leaders.
If Mr. Trump tries to go down this road, he’ll face legal obstacles. Although most senior officers facing presidential disapproval would probably resign, they have options if they decide to fight. The law prohibits the firing of commissioned officers except by “sentence of a general court-martial," as a “commutation of a sentence of a general court-martial," or “in time of war, by order of the president." Moreover, a commissioned officer who believes he’s been wrongfully dismissed has the right to seek a trial by court-martial, which may find the dismissal baseless. What then?
In the military as elsewhere, the president-elect wants officials who are loyal to him personally. While that might be relevant for a family business, it’s wildly inappropriate for the U.S. government. Every official’s first loyalty is to the Constitution and the rule of law—a principle that limits the means a president can legitimately use to achieve his goals. Mr. Trump appears poised to sidestep the Constitution, and we’ll soon find out whether the other branches of government are prepared to go along with him.
