//  3/16/17  //  Commentary

On January 20, 2017, Donald J. Trump did “solemnly swear . . . [to] faithfully execute the office of President of the United States,” and to “to the best of [his] ability, preserve, protect and defend the Constitution of the United States.”  The Constitution that Trump swore to preserve contains many limits on his own power—including the Take Care Clause of Article II, which commands that the President “shall take Care that the Laws be faithfully executed.”

Throughout our history, many have sworn that oath.  Some have been good men; others not so much.  Some have pursued admirable policies; again, others not so much.  With only the rarest and most disreputable of exceptions, however, our presidents have not acted with indifference (or at conscious cross-purposes) to the basic objects of our constitutional order. 

But can it be seriously believed that Trump does anything “faithfully”?  That he even understands the ideas embodied in the Constitution, let alone that fidelity to its text and spirit—and to the project it embodies—have purchase in his mind?  That legal considerations, as distinct from wealth, power and politics, matter to him?

Consider the evidence, keeping in mind that this excludes Trump’s statements on the campaign trail and that we’re only talking about a mere seven weeks. 

From the instant Trump swore his Oath of Office, he was in flagrant violation of the Foreign and Domestic Emoluments Clauses.  Since then, he has denounced the free press as an “enemy of the people” and punished news outlets that dare to criticize him.  He has toyed with the separation of powers by trashing judges who ruled against an arbitrary executive order that provided barely a fig leaf to cover its blatant racism and religious bigotry.  He has unleashed a lawless deportation force to work its will without the constraints essential to a nation committed to the rule of law.  And he has repeatedly—but baselessly—attacked the fundamental processes of our electoral system, lacing his lies with still more racism. 

This list goes on, and on, and on.  There’s the explosive accusation (still completely devoid of evidence) that President Obama feloniously spied on him during the presidential campaign.  There’s his mandate that females in his office “dress like women.”  There’s the suffocating cloud of Russian influence and intrigue in his inner circle.  There’s the tantalizing secret of his buried tax returns.  There’s the glaring, shocking, painful ignorance of basic healthcare policy.  There’s the implied demand for emergency powers in his claims of American Carnage, and the chilling dismissal of global affairs in his vision of America First.  There’s his Twitter feed, which lets us track him as he responds to Fox News—and which Trump wields as a weapon of both personal and mass destruction, deploying the awesome powers and bully pulpit of the Presidency for disturbing ends.

And perhaps most threatening of all, there’s the lying: the constant, unyielding, numbing fire hose of complete and utter bullshit—some of it barely intelligible—that engulfs Trump and everyone around him in a suffocating, disorienting haze that blurs the boundaries of truth and all but eviscerates the very notion.    

It is no exaggeration to say that Trump has converted the potent tools of the Executive Branch into a machine for personal and family aggrandizement and revenge against those who have ever humiliated or crossed him.  He has unleashed and weaponized many of our Nation’s worst impulses, and recklessly drawn down the finite account of government credibility without which the nation cannot move forward, much less weather the inevitable crises that lie ahead.  What’s more, he has done so gratuitously, in an almost entirely self-inflicted manner; I shudder at the thought of how Trump would deal with a genuine national emergency.

Already, experts have begun brushing up on the never-used Section 4 of the 25th Amendment and have started to catalogue the acts by this President that may  qualify for impeachment under Article II.

It may be difficult to describe the precise “high crimes and misdemeanors” inside Trump’s melting pot of abuse that already warrant Trump’s removal from office by the Senate following impeachment by the House.  And it could be challenging to fit his obviously bizarre and rash conduct into conventional notions of inability (in the 25th Amendment sense).  Nonetheless, this bill of particulars speaks to a point worth recalling:  the Constitution affords the President broad power, and in exchange demands that he “take Care that the Laws be faithfully executed.” 

In subtle ways, this command affects our whole constitutional structure.  It is a premise of many institutions and legal doctrines, and an abiding assurance that law will prevail in this nation above arbitrary and tyrannical uses of power.

Viewed from that perspective, it is one thing to disagree with a president, but it is quite another to view him as a truly bad faith actor, indifferent or hostile to the Constitution and its associated rules, norms, and institutions.  If enough judges, legislators, public officials, and ordinary citizens come to the conclusion that Trump is not taking care that the laws be faithfully executed and cannot be trusted to do so in a future crisis, they can—and should—reflect creatively on ways to more robustly check and balance Trump while protecting the constitutional system. 

That may mean impeachment, or it might mean less dramatic (but nonetheless important) forms of legal, political, and cultural resistance.  For those of us bracing for the years ahead, there is no time like the present to begin the arduous task of defending our core values.

Ultimately, if the President will not “take Care that the Laws be faithfully executed,” then that obligation falls on “We the People,” who established this nation in the first place and remain the ultimate pillar of its Constitution.


Are We All Textualists Now?

12/5/18  //  Commentary

Trump's executive order closing the government today out of respect to George H.W. Bush violates the plain text of a federal statute. If we really were all textualists now, that would be taken seriously.

Neil J. Kinkopf

George State University College of Law

Legislative Reform of the Electoral Process

12/3/18  //  Latest Developments

Here are the contributions from our recent symposium in collaboration with the Election Law Blog

Take Care

Performance Standards and Design Standards in New Election Legislation

11/27/18  //  In-Depth Analysis

Congress might learn a lesson from the structure of the Voting Rights Act, even beyond its substance.

Justin Levitt

Loyola Law School