Mob Rule

By Thomas Lamia

The number of outrages continue to climb as I write. Recounting, even briefly, the events of the first weeks of the Trump administration is unnecessary. The news coverage has been exhausting and unsatisfying. Too much to readily absorb but not enough to reach conclusions about where we are or where we are going with this bizarre adventure in constitutional history and the Rule of Law.  Who is in charge? Can all this be done under the president’s authority alone? What are the roles of Congress and the courts? 

Roughly speaking, we are experiencing a kind of mob rule. The mob is not unruly, it has a single leader, Donald Trump, an elected president. But Trump is not following the constitutional playbook passed on to him by his predecessors, including himself. He is sending personal representatives into cabinet level agencies to obtain classified data, terminate employees and prevent performance of legally mandated tasks. Without congressional approval he is acting contrary to law.

Article I of the Constitution is the source of Congress’ power to legislate. It is an exclusive power. Article II gives executive power to the president to see that the laws enacted through legislation are faithfully carried out. That, too, is an exclusive power. Article III vests judicial power in the courts. The Constitution’s design of three separate co-equal branches is the founding principle of our government. It has never been without detractors; it has never been a finely tuned, well-oiled machine. It has been severely tested on many occasions. It has survived.  It is the foundation of the rule of law.

The legal effect of what the president has set in motion is the subject of cases now before the courts. The plaintiffs seek to enjoin the government from proceeding further with its allegedly illegal conduct pending evidentiary hearings. The plaintiffs must show that they will suffer irreparable harm if the government is not enjoined (stopped). The courts must act quickly. Irreparable harm is the substance of these cases.  The courts will act promptly.

This unprecedented whirlwind of executive actions is a reckless gamble that puts the Constitution and the country at stake. 

At his inauguration, Trump swore an oath “to preserve, protect and defend the Constitution of the United States.”  The rule of law embodied in the Constitution is at the heart of the claims of illegality ascribed to the president’s program. Ultimately, the U.S. Supreme Court will decide the fundamental issue of whether a president is constitutionally bound to limit executive actions to authority given in laws enacted by Congress and signed by a president. There is no law giving the president discretion to spend or withhold money appropriated by the House of Representatives. There is no law empowering the president to eliminate a department of the government established by Congress.

In considering these issues, it is worthwhile to consider the man who is president. Is he a man who has shown respect for the law in the past? No, he is not. The evidence for this is replete in his past. Perhaps no person has been more litigious or more open in challenging civil and criminal law than Donald Trump. It was his right to do so. He has won some and lost some, the record is there to examine. My point here is that the person at the center of this crisis is nobody’s portrait of a thoughtful or predictable chief executive.  He seems drawn to violence. His record of pardons and appointments attest to this. He is charismatic with a long history of seeking attention and flattery. He is famously transactional, focusing on balancing interests, including his own, to make deals. His narcissism is always on display; he wants and is quick to claim credit for wins and shift blame for losses. He does not take notes or permit others to do so. He flushes documents down the toilet. He is the boss. His people, whether in business or government, follow his intentions to the point of knowing what he wants without his having to say it or put it into writing. This is the style he seems most comfortable employing as president. This is the style of a mob boss. 

The failure of Republican U.S. senators to rein in this Trump effort that is tantamount to a coup d’état, is shameful. The country is on the precipice of authoritarian rule. The door was opened by a narrow populist electoral victory in which no mandate for authoritarianism was proposed or given.

Congress can stop this coup by asserting its power under Article I of the Constitution. The House has sole power to spend the people’s money. The Senate has sole power of “Advice and Consent” over treaties and presidential appointments. Members of both institutions have been bullied into doing the president’s bidding by fear of being primaried or targeted for violence.