Worse than Nixon: The Constitutional Theory of the Trump Presidency

The legal theory of Donald Trump’s presidency is a constitutional paradox. It both violates express constitutional provisions and precedent and extra-constitutional norms. It does so in ways that makes the Trump presidency worse constitutionally than that of Richard Nixon’s ever was, and the issue in the coming weeks is whether the Supreme Court and the Senate will place the Constitution above politics.

The Constitution is one of expressed powers. The Founding Fathers such as Alexander Hamilton in Federalist Paper number 84 and the Supreme Court have repeatedly declared that the federal government has no authority to act unless it can trace its power back to an explicit clause of the U.S. Constitution. This means that no branch of the government, including the presidency, can claim extra-textual powers or authority to act beyond what is granted in the Constitution.

The powers of the president are outlined in Article II of the Constitution. Presidents are vested with executive power, to be commander in chief of the armed forces, and to take care that the laws of the country are faithfully executed. These big three constitutional powers are not infinite; they are subject to limits imposed by the powers given to Congress and the judiciary as outlined in Articles I and III of the Constitution. These are the concepts of checks and balances and separation of powers that all American schoolchildren learned. Our constitutional framers put them in there for a purpose–to prevent any one branch from becoming too powerful and abusing its authority.

The Trump administration missed school the day that checks and balances and separation of powers were taught. The October 8, 2019 letter to Congress from Trump’s Counsel Pat Cipollone declaring the president and the Executive Branch will not cooperate with Congress in any investigation or oversight its views as “illegitimate” is simply the latest manifestation of a presidency that for three years has shown its ignorance and arrogance to the basic principles of American constitutional law. Trump is asserting powers of the presidency that place it above the other two branches of government, claiming authority that just does not exist.

The president claims to have the authority to judge what is appropriate in terms of congressional investigatory authority or impeachment. These are matters the Supreme Court have held to be largely within the authority of Congress to decide. He claims that the impeachment process is subject to constitutional due process requirements, when in fact there is no indication that any of the rules governing a criminal proceeding apply to impeachment because it is not a criminal but a political proceeding which is not reviewable by the judiciary. He has asserted the right, in the case of the Mexican border wall funding, to ignore the powers of Congress to appropriate funds. He claims he has the authority to withhold his tax or other business records from congressional and criminal examination, and he has asserted his claim that he can prevent anyone in his administration from testifying or appearing before Congress.

Trump effectively asserts that he is above the Constitution and the law. His theory of the Constitution is executive branch or presidential supremacy, not subject to the checks and balances from the other branches of government. This is the claim of extra-textual constitutional power that the Trump presidency asserts. It is the theory of the unitary executive, a view of presidential power espoused by former Supreme Court Justice Antonin Scalia and conservative legal scholars. Yet it is a claim at odds with the text of the Constitution, legal precedent, the intent of the Framers, and basic principles of constitutionalism. It says in effect, the Constitution does not apply to the presidency, except when he says it does.

But Trump is also violating unwritten constitutional norms. These are principles that the Framers assumed public officials such as the president would share. These are respect for the other branches of government, basic processes of decision making, rule of law, and constitutional supremacy. The Constitution itself only works if one actually accepts as valid that it is a legitimate limit on your power and that it covers how the government works. From day one of the Trump presidency, he never accepted this unwritten norm, and Senate Republicans have enabled this behavior.

Even Richard Nixon accepted the validity of the Constitution, except perhaps years later in the famous 1977 David Frost interviews. He did not challenge oversight the way Trump does, he mostly cooperated with Congress and the impeachment process. Even though he challenged efforts to obtain White House tapes of oval office conversations, when the Supreme Court ruled against him, he accepted the legitimacy of the decision, complied, and eventually resigned. The lesson of Watergate is that the Constitution worked because all the players in the three branches accepted its mandate as legitimate.

In the coming weeks the Supreme Court, will perhaps weigh in on a variety of issues regarding congressional authority over the president. Unless this Supreme Court is so partisan, Trump should lose all of his challenges. Should he defy the Court it would constitute grounds for impeachment, but whether the Senate will enable his behavior may determine whether the Constitution actually means anything.