President Donald Trump’s twin assertions this week of absolute power to reopen the country and unilateral authority to adjourn Congress are only the latest in a series of claims he has made challenging America’s constitutional order.
But with thousands of people dying of Covid-19 every day, these go beyond the usual Trump distractions and could be more harmful. Instead of prompting what has become the usual response of “can he really do that,” his words could throw an already shaky America further off balance.
Trump often backs down or moves on. But he is the President. His words matter in the moment. Irrespective of how outlandish his Constitution-busting claims seem, he has tried to push his executive power to extremes.
Our constitutional order is the glue that holds the country together, especially in challenging times.
Trump continually flouts the fundamentals of the American framework: the balance between the states and US government, and separation of three federal branches, executive, legislative and judicial.
This week, he said he had “total” authority over states to determine when businesses, schools and other entities reopen across the country and, separately, threatened to invoke never-before-used or tested authority to shut down Congress so he could push through his appointees without a Senate vote.
In the past, Trump has claimed – against constitutional principles – that he could lift the right of citizenship for children born in the US of undocumented immigrants and suggested people crossing the border could be summarily deported without the hearings to determine if they deserved asylum or were wrongly apprehended.
He has scoffed at due process guarantees and equal protection of the law. Based on his personal predilections, he has declared people innocent or guilty and scorned US judges for rulings against his interests. He also has suggested he ultimately will prevail when his own appointees to the bench hear his cases.
Earlier this year, after he was acquitted by the Senate of impeachment charges related to his Ukrainian activities, Trump swiftly removed from office people who had testified at the House of Representatives’ impeachment inquiry. He also declared control of the Department of Justice: “I am actually, I guess, the chief law enforcement officer.”
That assertion of absolute, even autocratic, power reverberated in his claim this week: “When somebody’s the President of the United States, the authority is total, and that’s the way it’s got to be.”
Even if or when he retreats from such assertions, Trump inevitably sets a tone for other public officials and for individual citizens across the country who are today seeking leadership along with solace.
‘State of war is not a blank check’
The US Supreme Court has restrained executive power even during national crises. In 1952, the court struck down President Harry Truman’s attempt to seize steel mills without congressional approval to avert a strike during the Korean War. Justice Robert Jackson warned against policies of the moment that “lose sight of enduring consequences upon the balanced power structure of our Republic.”
In 2004, when the justices rejected part of President George W. Bush’s detention policy after the September 11, 2001, terrorist attacks, Justice Sandra Day O’Connor cited the 1952 case and declared, “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”
This week’s Trump incidents, like the previous episodes challenging norms, seemed spit out, lacking consultation with his legal experts.
When pressed on Monday about his claim of absolute authority to decide when states should restart local economies, Trump said his authority was grounded in “numerous provisions” of the Constitution. He cited none and wrongly declared of state and local officials, “They can’t do anything without the approval of the President of the United States.”
Governors pushed back based on the entrenched principle that the Constitution reserves numerous powers for the states, including authority for public health and safety. From its earliest beginning, the Supreme Court has endorsed state sovereignty, and the justices’ touchstone for state power to quarantine people and mandate vaccination during the outbreak of disease dates to 1905.
In the current coronavirus crisis, in fact, the nation’s governors and mayors have been the ones imposing “shelter in place” restrictions for individuals and shuttering businesses and schools. The President has also said states are responsible for acquiring equipment and helping their citizens and hospitals, calling the federal government a “backup.”
A day after his claim of authority, Trump acknowledged that state governors would decide when to lift their stay-at-home orders. “The governors are going to be running their individual states,” Trump said, with no real explanation for his prior stance.
Then on Wednesday, he threatened to use untested constitutional authority to adjourn Congress so that he could win “recess” confirmations of pending nominees. Senate Majority Leader Mitch McConnell has said that senators would not be returning to Washington for votes until at least May 4 because of the pandemic.
“The Senate should either fulfill its duty and vote on my nominees or it should formally adjourn so that I can make recess appointments,” Trump said, complaining about the current pending nominations for Director of National Intelligence, Treasury assistant secretary and the head of the Voice of America.
The Constitution states that the President “may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper.”
But the meaning of such “disagreement” over adjournment is unclear. Normally, both the House and Senate would need to vote on resolutions to adjourn. After Trump’s assertion, McConnell’s office released a statement that said in part, “The Leader pledged to find ways to confirm nominees considered mission-critical to the COVID-19 pandemic, but under Senate rules that will take consent from (Senate Minority Leader Chuck) Schumer.”
In observing that adjournment would require agreement from Schumer, McConnell implicitly rejected any plan that would give the President unilateral power to close the chambers. The Senate has routinely used “pro-forma” sessions over the last decade to prevent controversial recess appointments under Presidents Bush and Barack Obama.
Trump lacks awareness, or at least regard, for history and norms. Bluster has become a tool. In that vein, Trump’s critics often brush off his remarks as mere distractions.
Sen. Kamala Harris, a California Democrat, told CNN’s Anderson Cooper Wednesday night that in threatening to shut down Congress, Trump was trying “to deflect from the fact that he has failed to be a leader during a pandemic, an economic crisis facing our country.”
Yet, now, as the country’s death count rounds 30,000, the travesty of distractions only seems to deepen the tragedy.
