Of Article II and Limited Government

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The limited president

Donald Trump recently reconfirmed, yet again, that he has effectively zero understanding of our Constitution and the government it creates.

He said, “I have Article II, where I have the right to do whatever I want as president.”

Just to be very clear, this is entirely false and very stupid. Article II of the Constitution does not give the president of the United States “the right to do whatever I want.”

It is actually a bit wrong to say that the president has any rights at all, as president. As a citizen, the president has all the rights of all other citizens, but upon becoming president, the incumbent accepts certain practical limits on those rights as a result of the position.

The president has the same right to freedom of speech as anyone else, but responsible presidents realize that their every public utterance is news and can have an impact throughout the nation and around the world, and speak with corresponding care, an idea that Trump does not understand.

The president has the same right as anyone else to sue for defamation, but the Supreme Court, in the interest of protecting the robust political debates that are the point of the right to free speech, has set the bar almost impossibly high for public figures to win defamation cases. To state the obvious, the president is very much a public figure.

In our system, the point of government is to protect the rights of citizens. Government and its actors do not have rights. They have powers. The point of the Constitution is to create a government that has enough power to do the job without too much threatening the rights of the people.

That is, our federal government under the Constitution is supposed to be powerful, but limited. This is the key point that Trump misses entirely with his claim that he can “do whatever [he] wants.” He seems to think that he has unlimited power.

Under our Constitution, no government official may ever “do whatever [he] wants.” The idea is antithetical to the plan of the Constitution at the most basic level.

It would not help, since Trump neither reads nor learns, but the Constitution nowhere states any of these points. Nor does it state one of the key features about it that is supposed to limit its power, what all informed observers refer to as the “separation of powers.” For the authors of the Constitution, long standing convention identified three basic powers of government: creating laws, enforcing laws, and interpreting laws.

So, our Constitution assigns to the legislative branch, or Congress, the power to make laws in Article I. It assigns the power to interpret laws to the judiciary in Article III. And it assigns, broadly, the power to enforce laws to the executive, or president, in Article II.

Already we see one key power of government that no president has, the power to make laws. The separation of powers is not total. The system would not work if it were. The branches have to overlap somewhat for them to limit each other. The president does have the power to veto legislation, as Trump has done, but Congress has the final say with its power override a president’s veto, with a two-thirds majority vote in both Houses. And the veto power is purely negative. The president may suggest legislation, but all valid statutes must win passage in both Houses of Congress before becoming law.

Trump has signed a number of executive orders, which primarily impact the operation of the federal government. In the modern United States, that can be a considerable power, but an executive order cannot bind effectively everyone in the country, as any statute that Congress passes does. It seems likely that Trump does not understand the difference between statutes as passed by Congress and executive orders.

The president also lacks the power to interpret laws, which is the job of the judiciary. When a federal judge struck down the first version of his Muslim ban, he denounced the “so-called” judge, who cared not for his comment because the authors of the Constitution took some pains to insulate federal judges from political interference, which works pretty well.

But Trump did not seem to understand that anything he does has to comport with the Constitution and that the most basic, explicit limits on his power come from the rights the Constitution explicitly guarantees, and implicitly guarantees, to the people.

So the First Amendment prohibits government from interfering with the free press, which Trump and his toadies learned, or got reminded of, when they rescinded the press credentials of a television reporter after a White House aide tried to take a microphone away from him during a press conference.

He does not have “the right” to do that.

The First Amendment also prohibits any established religion, or governmental interference with religious belief or practice. This was the rule the federal judge used to strike down the first version of the Muslim ban, because it prohibits using anyone’s religious beliefs as the basis for any official decision, which a ban on Muslims as Muslims obviously contravenes.

He does not have “the right” to do that.

The problem Trump presents now is that he and his toadies do just do whatever he wants and the violations of rights and of the rules and norms of government pile up so fast that no one can keep up. This is precisely why we need to impeach him. Even if the Senate fails to remove him, impeachment is the most vivid, effective way to remind him that other branches have powers that he cannot control.

He cannot “do whatever [he] wants.” He cannot stop the House from impeaching him.

Written by

Uppity gay, Buddhist, author, historian.

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