“He who saves his Country,” President Donald Trump wrote on social media, “does not violate any Law.”
Does the Constitution, in fact, confer upon the president authority to violate the law? Is there, indeed, room in the Constitution for governmental actors to defy the instrument from which they derive their authority? Assertions of an executive authority to trample constitutional restraints invites Chief Justice John Marshall’s rejoinder in Marbury v. Madison (1803): “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” Alexander Hamilton never urged a presidential power to violate the law and flatly rejected the proposition: “A delegated authority cannot alter the constituting act, unless so expressly authorized by the constituting power. An agent may not new model his commission.” In a word, the Constitution does not contemplate suicide; it grants to no official the authority to violate, let alone destroy, the charter from which he derives his governing authority.
If it were otherwise, that is, if a president may, in the name of saving the country, suspend the laws, dispense with their enforcement and violate them as he sees fit, the result, which Justice Robert H. Jackson condemned in the Steel Seizure Case (1952), is a “plea for power to deal with a crisis or emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.” The Framers of the Constitution, as Jackson pointed out, wisely perceived that executive possession of emergency power “would tend to kindle emergencies” and confront the republic with the menace, he said, of an illimitable power, that “either has no beginning or no end.” A presidential emergency power, Jackson wrote, “need submit to no legal restraints.”
If necessity is the measure of power, why should any consideration be given to legal constraints or constitutional limitations? And, by what measuring stick may legality of an extra-legal act be evaluated? Is it possible for governmental officials to swear an oath to uphold the Constitution and at the same time to ignore its provisions or assert the authority to violate the Constitution? May a president who perceives a grave emergency claim authority to stay in office for six years rather than four? There is, in this line of inquiry, a question of existential importance for constitutional government: Is there authority, drawn from some nook or cranny, for the proposition that in times of emergency or crisis a new set of legal norms may be invoked to replace constitutional principles enshrined as the rule of law? That is the threshold question, certainly, given President Trump’s assertion of power to flaunt the law, which in its essence, amounts to the claim of an executive power to improvise legislation. Does the president possess the power to revise the law? Russell Vought, the president’s budget chief, has said that the United States is in a “post constitutional moment.”
So, it seems. After two centuries of constitutional government in which presidents, with some lapses, have recognized their solemn duty under the Take Care Clause to “faithfully execute the laws,” the Trump Administration posits a theory of unconfined presidential power that is drawn straight out of the pages of the Stuart Kings’ doctrine of the Royal Prerogative. Among the Founders, it is worth recalling, the word “prerogative” was a term of derision, a political shaft intended to taint an opponent with the stench of monarchism. The Constitutional Convention’s rejection of executive prerogative was integral to implementing the rule of law, the premise and promise of executive subordination to the law.
The audacious claim of power to proceed without any legal restraints, a proposition that lacks support in the text, history or architecture of the Constitution, represents an amalgam of absolutist assertions by figures whose writings and careers are not only alien, but hostile, to the planks, pillars and principles of American Constitutionalism. Even the Supreme Court that rendered in U.S. v. Trump a pernicious decision that clothed the presidency with sweeping immunity from criminal prosecution, would never cite the intellectual forebears of President Trump’s pretensions: Napolean Bonaparte, 17th Century British kings, and 20th Century authoritarians who waged war on constitutional principles and the rule of law, for which Americans gave their lives at Normandy to defend.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.
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