The Trump administration has acted foolishly and immorally – but not yet illegally.
FROM THE GUARDIAN | JULY 1, 2018
A frequent media trope is anxiety that the Trump administration is undermining American rule of law in the name of his own personal power, ego and profit. One recent Trump tweet in particular – “I have the absolute right to pardon myself” – did little to assuage the fears of those who believe Trump is planning, like Napoleon, to crown himself emperor. Longtime commentator Jonathan Chait recently warned: “The rule of law in the United States is like a suspension bridge – still upright, but with cables snapping, one by one.”
It may be that Trump has authoritarian desires. Nonetheless, the US firmly remains a nation of laws. For all the daily angst and noise about the current occupant of the White House, nothing has happened to date that fundamentally alters that statement.
One key question is: does what the president says matter as much as what he does? Yes, words have great import, and the casual way Trump verbally disregards norms and laws is rightly troubling. But so far none of the president’s eyebrow-raising tweets or utterances have actually led to illegal actions.
Trump is hardly the first president to go on outrageous rants or make inappropriate demands. As we know from the White House tapes and the remembrances of his aides, Richard Nixon frequently threatened, in late-night drunken rages, to use the government against his enemies. But, unlike Trump, Nixon actually followed through: he got the FBI and IRS to illegally investigate and harass his adversaries. When Trump asked the Postal Service to review and potentially revoke its contract with Amazon, he was quickly rebuffed. Of course, the fact that he even raised the idea was inappropriate; however, doing so, in and of itself, was probably not illegal.
It is entirely possible that the Mueller investigation will find that the president attempted to obstruct justice. If substantiated, that would be, indeed, a serious and illegal act. But it was also what Bill Clinton was accused of and impeached for. Those who remember the agonizing Ken Starr investigation and the endless political drama of 1998 and 1999 know how divisive it was, yet during that ordeal there was not nearly the same pitch of hysteria that the end of law was nigh.
In fact, everything the Trump administration has done to date has been fully within our constitution and framework of laws. Multiple proposed travel bans were stayed by federal courts. Congress has passed various immigration laws; some have been interpreted to allow the executive to restrict immigration the way Trump has, while other interpretations suggest that he cannot. The courts will rule on the question, and the Trump administrationwill almost certainly honor that ruling, as it has every other court ruling. That does not mean Trump will be nice about it; it does not mean the absence of absurd, scurrilous and misleading tweets. It simply means that the legal process will be obeyed.
Though Trump likes to inveigh against judges, his administration complies with court orders. That has not been true of all past presidents. Andrew Jackson famously dismissed a court decision against his forced removal of the Cherokees from Georgia by saying: “The chief justice has made his ruling. Now let him enforce it.” As for today’s controversial immigration policies separating children from parents, they are, sadly, legal – a reminder that something may be immoral but not also illegal, and also a reminder that laws must be continually revised to reflect our highest societal moral standards.
The Trump administration has also become adept at finding obscure, long dormant “national security” clauses in the federal codex to invoke as justification for steel and aluminum tariffs as well as punitive tariffs on Chinese goods (the latter has been announced but not yet enacted). These may be stupid policy, but they are not illegal – yet. And they might well be challenged in court and struck down. And, for all his venting against Nafta, Trump has yet to announce a withdrawal, probably because his lawyers have counseled him that the president may not have authority to contravene Congress’s original legislation approving the treaty. Even if he does try, there will be legal challenges. In other words: bad policy, but not a credible threat to rule of law.
Same with the administration’s decisions to terminate the Iran deal (which was never ratified by Congress and therefore non-binding); withdraw from the Paris climate accord; end Daca immigration protections (then begrudgingly honor the injunction staying that move); enforce existing immigration law; revoke net neutrality guidelines; terminate some late-Obama-era environmental regulations; and even bomb Syria under the vague terms of the War Powers Act. All of those actions fall squarely within the allowed powers of the executive or have yet to be deemed otherwise by courts. One might loathe the policies and those responsible for them, but illegal they are not.
So intense are the reactions to Trump’s words that they distract from the real underlying problems. One is the extent to which Congress over the years has delegated excessive authority to the executive. Another is the degree to which the executive branch, in the face of a Congress unable to act quickly or clearly on pressing issues, has for decades pushed the boundaries of what is legal. Trump is the direct beneficiary of attempts by the Bush and Obama administrations to circumvent Congress and the lawmaking process, Bush by expanding national security powers and Obama by executive rule-making (of which Daca was only one of many examples). Arguably, Trump has actually been far less successful than his predecessors in expanding the powers of the presidency.
The American system of government was designed to contain an executive with monarchical tendencies, just as it was designed to prevent Congress from exercising too much power. For the moment, the system appears to be holding. Only when it is tested do you learn how resilient a system actually is; we’ve already had 500 days of Trump, and the rule of law is still strong.
Zachary Karabell is the author of The Leading Indicators: A Short History of the Numbers That Rule Our World