In deciding to preserve its “non-delegation” doctrine last week in the Gundy case, the Supreme Court seemingly avoided a serious disruption in government operations. But the Court’s adherence to that doctrine rests on myth more than reality.
Today’s New York Times reports that another member of Congress, Katie Porter (D-CA), has called for impeachment, citing the “constitutional crisis” provoked by President Donald Trump. According to Porter, echoing statements made by Jerry Nadler (D-NY) and other members of Congress, we have a crisis because of Trump’s misconduct, especially his failure to comply with congressional requests for documents and other information.
At some point, Trump’s disregard of the law may amount to a constitutional crisis, but we’re not there yet. In fact, with respect to the requests for information, the President is acting in many ways as the Founding Fathers expected.
Observers are correct to condemn both Russian efforts to influence our presidential elections and President Trump’s failure to reject those efforts. But it is wrong to suggest that all efforts by foreign governments to influence our elections are improper. The question is not whether other countries are trying to exert influence, but whether they are doing so by legitimate means.
Punitive tariffs, arms sales, border wall funding, and more. Donald Trump regularly finds ways to pursue his policy preferences over the clear opposition of Congress. This is especially troubling since decisions on these matters are properly within the constitutional authority of the legislative branch.
As many political observers have observed, Congress has abdicated its policy making responsibilities by delegating immense amounts of power to the executive branch, and it needs to assert its authority and live up to its constitutional role. But while it is correct to promote a return to core constitutional values, we cannot rely on the virtue of our elected officials to do the right thing. Congress has defaulted on his constitutional duties for more than a century; there is no reason to think it will change. Indeed, our Constitution is premised on that reality.
After the Democratic National Committee (DNC) provoked criticism by favoring Hillary Clinton’s campaign in 2016, you’d think it would have learned its lesson about trying to game the nominating process. Apparently not. The DNC has issued eligibility criteria for its presidential candidate debates that threaten to quickly winnow the field—nearly five months before the Iowa caucus and New Hampshire primary.
How does Special Counsel Robert Mueller’s public statement change the impeachment question? Not very much. He confirmed what we already knew from his report:
- If he had been confident that President Trump did not commit the crime of obstructing justice, he would have said so.
- He didn’t consider bringing charges against Trump because under longstanding Department of Justice policy, it is unconstitutional to file criminal charges against a sitting President.
- The proper way to hold the Trump accountable for his conduct is either through criminal charges after he leaves office or the impeachment process while he still holds office.
Does the Mueller Report justify impeachment?
Members of Congress have good cause to worry about the extent to which President Trump ignores legal constraints. But they also have given him plenty of authority to impose his will lawfully. Yesterday’s announcement of weapons sales to Saudi Arabia and other Middle East countries is illustrative. Even though the Constitution does not grant Presidents the power to make arms deals on their own, Congress has done so.
According to a federal district court, the subpoena power of Congress gives it access to President Trump’s personal financial records. While this is an important decision, it’s only a prelude to a decision on appeal. As we’ve seen before, the President sometimes prevails in the end after losing initially. And there are good arguments that the President’s lawyers can make to the U.S. Court of Appeals for the D.C. Circuit, and possibly the U.S. Supreme Court, to try to limit the scope of the subpoena.
Historically, different U.S Courts of Appeal have varied in their ideological cast. The 9th Circuit, which covers California and other western states, has long leaned liberal while the 5th Circuit, which covers Texas, Louisiana, and Mississippi, has leaned conservative. But changes in the U.S. Senate approval process are giving President Trump the opportunity to bring a conservative tilt to all of the Courts of Appeal.
Is Donald Trump’s trade war with China a shrewd tactic or a reckless gamble with the livelihoods of farmers, auto workers, and other Americans? Only time will tell.
But as we watch events unfold, we should remember why the Framers of the Constitution rested authority to “regulate commerce with foreign nations” in Congress rather than with the President. The constitutional drafters understood that policy is best made by elected representatives who bring different perspectives to the table than by a single executive who has only one viewpoint. They also understood that executives are too willing to provoke conflict with other countries. The Framers wanted to make it difficult for their new government to act impulsively.
So how does Trump have the authority to levy harsh tariffs on goods imported from China?