A Lesson On The Constitution

Jamin Raskin was a Professor of Constitutional law when I met him, many years ago now. That meeting occurred only because Beverly Hudnut was in his law school class at American University, and introduced us when I was in D.C. Raskin had recognized the Hudnut name from the famous First Amendment case that struck down an Indianapolis ordinance outlawing an ill-defined “pornography”–a case on which I had served as local counsel.

Raskin was an impressive constitutional scholar and teacher, and his subsequent performance as a legislator from Maryland and activist for the National Popular Vote Project has been equally impressive. That’s why his recent Washington Post op-ed on the proper relationship of the executive and legislative branches during the current constitutional crises is well worth reading.

He began by documenting the current–unprecedented– intransigence of the Executive branch:

Constitutional crisis looms, preceded by constitutional illiteracy and confusion, which now hang like a thick fog over Washington. President Trump’s administration refuses to cooperate with any congressional investigations he disfavors, drawing a curtain over the executive branch and blockading our oversight work: His treasury secretary has declinedto produce the president’s tax returns, as demandedby the House Ways and Means Committee under federal statute. His attorney general has refusedto comply with a House Judiciary Committee subpoena for special counsel Robert Mueller’s unredacted report and the evidence underlying his findings, and he has orderedJustice Department official John Gore not to testify before the House Oversight and Reform Committee (without even bothering to assert a legal privilege). Trump is suingHouse Oversight Committee Chairman Elijah Cummings (D-Md.) for seeking documents from one of the president’s accounting firms. And the White House has directedformer counsel Donald McGahn and other witnesses not to appear before Congress. “Congress shouldn’t be looking anymore,” the president-king proclaims. “This is all. It’s done.”

Oversight isn’t the only area where the president thinks he can supersede and supplant Congress. He believes he can declarea national security emergency when lawmakers reject funding for his border wall — and then reprogrammoney Congress has appropriated for other purposes to build the wall behind our backs. And despite the fact that his main job is to “take Care that the Laws be faithfully executed,” as the Constitution’s Article IIprovides, he routinely sabotages the effective administration of the Affordable Care Act (by starvingrecruitment efforts and promoting“junk” plans) and encourages government officials at the border to violate the law on asylum seekers. All this falls outside of his constitutional power.

Raskin then reminded readers (at least those who paid attention in civics class, assuming they had a civics class) of the traditional story we tell ourselves about “co-equal branches” and the operation of checks and balances.

Then he dissents.

But this naive cliche is now the heart of our current troubles. Congress was never designed as, nor should it ever become, a mere “co-equal branch,” beseeching the president to share his awesome powers with us. We are the exclusive lawmaking branch of our national government and the preeminent part of it. We set the policy agenda, we write the laws, and we can impeach judges or executives who commit high crimes and misdemeanors against our institutions. As James Madison observedin the Federalist Papers, “In republican government, the legislative authority necessarily predominates.” Congress is first among equals.

Raskin’s column proceeds by detailing the history and jurisprudence that support his assertion of legislative superiority, and he also illuminates the path by which Presidents have amassed unauthorized powers. I really encourage you to click through and read the column in its entirety.

It’s tempting to think of the president as the main actor in the story of America, because he (or she) is a cast of one. But as the great Rep. Thaddeus Stevens reminded Americans during Reconstruction, “The sovereign power of the nation rests in Congress,” and its members stand around the president “as watchmen to enforce his obedience to the law and the Constitution.”

One of the most disappointing aspects of the travesty that has been triggered by a corrupt and incompetent Executive branch and a President who consistently displays his contempt for the law and his ignorance of even the most basic provisions of the constitution, is the continued refusal of Republicans in the House and Senate to defend the institution and the country they presumably serve.

They should listen to Raskin.And grow some balls.


  1. ill say its a defind theory,that already worked,until now. what im mifed about is, excuse my ignorance, why mcconnel hasnt been censored by congress,for his lack of following the law,and allowing trump to just ignore the rule of law,ethics,and decorum…did i miss something in civics? but then again,i see the legislature as a whole weak in spine and actions.

  2. “One of the most disappointing aspects of the travesty that has been triggered by a corrupt and incompetent Executive branch and a President who consistently displays his contempt for the law and his ignorance of even the most basic provisions of the constitution, is the continued refusal of Republicans in the House and Senate to defend the institution and the country they presumably serve.”

    As we concentrate on Articles I and II of the Constitution and the Electoral College appointment of the current arbiter of mass destruction; all of which is supported by Article III via their passage of Citizens United, we are missing the small print written into all three branches of our government regarding the Oath of Office each and every one of them swore to. Read further into what the founding fathers included in the Constitution of the United States of America to Article VI which they somehow knew would be needed to remind those elected and appointed to the Legislative, Executive and Judicial Articles at federal and state levels regarding the requirement that all “shall be bound by Oath or Affirmation, to support this Constitution, but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

  3. “legislative superiority”??

    “freedom of the press”??

    “equal powers”??

    This all assumes we are the government called a democratic republic. We are not.

    We are an Oligarchy who sold the masses a democracy would prevail. We even kill people in the name of democracy, but I don’t see one.

    Albert Einstein didn’t see this democratic republic in the late 40s. Chomsky doesn’t see one either.

    I’m not putting myself in their class, but if these geniuses can see our phoniness, maybe we should listen to them. 😉

    Trump is the current CEO of USA, Inc.

    If anyone considers him a public servant…is there a stupid farm, yet?

    The biggest problem is our CEO can use the Public Relations Department to manufacture war with other countries to steal resources. If anyone in 2019 thinks we are spreading democracy or defending ourselves from “evil-doers”…is there a stupid farm, yet?

    This CEO also has access to the most broad-reaching intelligentsia apparatus in the world. Your cell phone is a tracking device, and a drone can use it to wipe you out.

    As for “growing balls,” or turning their backs on the Donors/Oligarchs who own USA, Inc. — good luck with that.

  4. In our throw-away culture in constant need of instant gratification, we use up all the assets, borrow to get new stuff as fast as possible, damn the cost. It seems We, the people, have used up the good, disregarding any plan for the future to maintain what we have been given, and hope that someone else will take care of any problem while we continue to seek our own “life , liberty and pursuit of happiness”, especially the last. As long as we have ours, who cares about anyone else.
    As our feckless leader, having years of experience using others assets to gratify his own self-interests, aided and abetted by those who see his obvious malleability as a convenient tool to satisfy themselves and the goals of their donor class handlers, steals the most valuable of our hard earned assets, a large group of us proceed in blissful distraction and are more than willing to throw away, ignore maintenance, and surrender responsibility for the promise of “winning”, whatever that means.
    It may well be too late to save the legacy we should value above all. After all, “it is the economy, stupid.”

  5. What I find interesting is that the Constitution is a really easy read, but it seems few of our Representatives have read it.

  6. The Congress will only be as decent as those who elected them. Americans, as defined by the various constitutions and political bodies in question, are not decent people.

  7. What a sad state of affairs. You don’t suppose the vacating of teaching civics in schools was planned, do you? Nah. Because if it was planned, we’d be a full-blown monarchy. Instead, in two short years as a culmination of systematic dumbing-down of our populace, we have shown ourselves to be a crime syndicate run by a mindless, psychopathic mob boss. Mnuchin, Barr, McConnell, Graham, et. al., are merely Trump’s “Capos” who run amok.

    The rule of law has become a quaint notion is a very short time.

  8. As Stephen Colbert said, ‘Next year’s State of the Union Address to Congress will be quite short :: simply “The state of the union is none of your damn business”.

  9. This current spasm of Congressional inaction is nothing new. For over a decade the people of this country have looked, rightly so, upon Congress as the bastard step child of government. That branch of government has continually and collectively refused to enforce any kind of ethic’s rules, has openly taken bribes through their corrupt campaign financing schemes, and exclusively represented the ugly American class made up of the greediest of the greedy.
    That they now refuse to impeach the most corrupt president in history does not surprise me. After all, the stock market might go down, and lord knows we can’t have that! It isn’t the rule of law we honor… it is money.

  10. “Growing some balls” seems a bit crude and sexist – but gets to the point.

    I tend to agree with Theresa: Congress is responsible for their own downfall – and they have the power to make things right again if they so choose.

    Perhaps it’s the hyper-partisan environment – but it seems impossible to get things done in Congress. Basic things like passing a budget seem to be just out of reach. Even with solid Republican control of both houses they couldn’t repeal the ACA (not that I think they should). Things that the public generally agrees on – some greater gun regulation, basic immigration reform, infrastructure improvements, fixing social security — aren’t even in the realm of possibilities.

    We really do need some fundamental reforms:
    1. Getting some of the money out of politics
    2. Ending gerrymandering
    3. Ethics reforms (which would be helped by getting some of the money out of politics).
    4. Putting an end to the EC.

  11. Raskin is a brilliant professor of constitutional law and its history. I hope he aspires to higher office than his current position as a congressman from Maryland since we need to have a defense of our democracy which is under attack now from the wannabe masquerader in the Oval Office, an executive who, along with his appointive officers, the judiciary and even members of Congress itself, are subject to being fired by Congress. No other branch of government has such power over so many, and it is one I devoutly wish the Congress would exercise now in re this masquerading piece of protoplasm who is continuing to obstruct justice daily – and in plain view. Madison wisely assigned oversight of Article II and III officers to We the People as represented by our Article I Congress, but what good is an unexercised power if not used when far more than sufficient provocation is present? I for one (after Mueller’s report) have come down on the side of impeachment today. Let’s go!

  12. Raskin makes this point too:

    “The presidency in the modern era has been inflated and aggrandized beyond anything the founders might have wished for or even recognized. The growth of the national security state after World War II gave the president a massive apparatus for practicing foreign intervention and waging unilateral, undeclared wars.”

    “As presidential power has grown, congressional power has been eroded through a combination of legislative-branch passivity and executive-branch power grabs. Lawmakers stood by, never voting to declare war or demanding an end to hostilities, as armed conflicts like the Korean and Vietnam wars raged for years.”

    President Agent Orange and Pastor Pence have correctly identified our Federal Legislative Branch, with some exceptions, as spineless, with a top priority of being elected again and again. This lack of Federal Legislative backbone dates backs decades. President Agent Orange and Pastor Pence have moved to a new level.

    Even during the “Good Old Days” Presidents have used the Army and Marines as a Praetorian Guard for American Multi-National Corporations without any Declarations of War. Think of our numerous interventions covert and overt in Latin America.

  13. Raskin may be as brilliant as has been credited here. But he should note Congress was never designed to have political parties either. Over the years, our two party system has weakened Congress, tribalized our politics, and enabled wealth to capture both parties- and thus our government.

  14. John – You are right about political parties in 1789. Washington himself intoned against the formation of political parties on grounds that citizens would give their allegiance to parties rather than their country. Prescient!

    As to money in politics, we are where we are, right or wrong, and must somehow take money from selected donors (such as small donors only) so that the temptation to do as told by our donors doesn’t affect how those elected vote and, of course, it is entirely probable that donors and those elected are on the same page out front in all events, so I think the use of the term capture is a bit overblown. As in any other human endeavor, we start from where we are, but the answer to your critique is unchanging, to wit: public financing of political campaigns, which will bring us closer to Washington’s noteworthy observation while removing the Kochs and Mercers from the game.

  15. Trump is our mea culpa, but he’s the tip of the iceberg. The whole iceberg includes everyone he appointed and Mitch McConnell. As the Capitain of the Titanic might said when he was awakened with the news, “Look at that f*****g ship killer.”

    It was the perfect storm until Paul Ryan escaped on the end of our foot with his portion of the loot.

    Now we have to clean up after the storm including the same question we are faced with by climate change; mitigate or adapt. Are we in control of fixing our government to alleviate future storms or should we adapt as a country to the risk of the return someday of corrupt, incompetent government? Can we prevent reoccurrence or have we lost all control?

    Like climate change the answers to those questions have to be and will be answered not individually but collectively.

  16. Since the mobster who currently runs our government first abjured the rule of law, people serious about the Constitution and the preservation of democracy – aka Democrats – have been discussing Plan B. Trump now commands the Executive Branch and half of the Legislative Branch. Can the Judicial Branch be far behind? When Trump refuses to leave office after his 2020 loss, how shall we go about escorting him from the premises? Plan B leaves all options on the table, including many that liberals find distasteful. And so we must ask the question, “is government of the people, by the people, and for the people worth preserving if it requires the ultimate sacrifice?” With Memorial Day just behind us, accompanied by the constant refrain, “they gave their lives that we might enjoy our freedoms,” that issue was settled long ago. And I am encouraged by the increasing number of people who are willing to commit to whatever level of sacrifice is required to facilitate Trump’s return to his natural role of corrupt predatory businessman. Plan B, in its simplest form, reads, “Whatever it takes.”

  17. Trump’s one skill set, celebrity, unfortunately gives him the power to normalize chaos from corruption and incompetence. What we have to accomplish over time once he’s gone is to reestablish the norm of good government.

  18. The difference between constitutional government government and the reality has been been present since the beginning. It originated with an attempt establish power with an elite base of property owners and well educated ruling class. Throwing sops by sharing of vast national resources and hope for success. While reserving power and investment capital for the elites. Assuming the electoral college would elect Washington for his lifetime and then a successor from among popular elites. Or, at least, name three elite candidates from among that group the House would chose . Well, Washington left after 2 terms instead staying for life. While his chosen successor ( John Adams) did follow him. The scheme began to fall apart. Beginning continuing with opposition party expanding popular participation is selecting electors. But not diluting the status of the ultimate outcome of eltitist rulers. Now we live in the age where the sops are only promised and not delivered. And the educated elitist part of equation is dead. Instead of the Executive being chosen by a majority of 538 electors with sole aim of choosing “one of the people” who has a modicum ability. It gets ever closer to being chosen by unprepared voters from an evolved system that produces flawed nominees. The best having been “eliminated” by attrition, a sensationalist press and a race to the bottom.

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