I spent 21 years teaching college students about law and public policy–about the limits that a country’s legal framework imposes on the policies that legislators can legitimately consider. For a significant portion of those years, I was also an annoying scold, ranting about the undeniable fact that most Americans were uninterested in and unaware of the provisions of the constitutional framework that constrain what American government can legally do.
We are now reaping the consequences of that massive constitutional ignorance.
A would-be dictator has taken residence in the Oval Office, and has proceeded to ignore the legal restraints on presidential power. Given his intellectual deficits and manifest ignorance, it is very likely that he is as unaware of those restraints as he is of the American Idea–the underlying philosophy of the Constitution–and of the basic operations of government. (I doubt he could even spell philosophy, given his third-grade vocabulary.)
I have previously cited the constitutional provisions vesting Congress with exclusive authority over many of the areas Trump purports to “rule” with his firehouse of Executive Orders. Such orders have a limited provenance; as Josh Marshall explained on Talking Points Memo a while back explained more clearly than I have.
Most people, including a lot of journalists, don’t understand what an executive order even is. It’s not a law or even a quasi-law. An executive order is really just a memo from the president to his staff (in this sense, his staff of two million civil servants) to take certain actions. Do this and don’t do that. Enforce this law in that way. Those can be actions the Constitution empowers him to take or ones Congress specifically assigns to him through laws. I interpret the law this way, so take this action, etc. In areas where presidents have a lot of power — say, in border and immigration enforcement, for instance — executive orders are a big deal. Courts can say: no, the law or the Constitution doesn’t empower you or allow you to do those things. But executives act and courts mostly react. So in this area of broad executive power, they’re a big deal. That’s also where you get into the territory of genuine constitutional crises and potential presidential dictatorship, because the outer limits of some of those powers aren’t clearly charted.
In other areas–very much including election administration–an Executive Order is flat-out unconstitutional.
But presidents have little to no power over election administration. States administer American elections, for state and federal office. Congress is empowered to create certain baseline rules for how states administer elections, in addition to those enumerated in the Constitution. But that’s the federal role — a critical fact under present circumstances, as I noted a week ago. The president has very little power beyond having the Justice Department bring lawsuits over claimed constitutional infractions or failure to follow federal law. In other words, an executive order on election administration is mostly meaningless — and this is the case for multiple reasons…. Elections are administered by state officials and they are part of a separate, untethered sovereignty. The U.S. president can’t fire a governor or a mayor, ever. Federal law is supreme over state law. That makes states subordinate to but still not at the command of the president. They’re separate sovereignties. It is as though the tendons or draw-wires that connect a head of state down to local government in a unitary state have simply been severed in a federal one. He doesn’t just lack the authority. He lacks the power. As I explained Monday, the real issue is going to come when the president tries to use his unauthorized power to extort compliance by withholding money.
As Marshall notes, it’s one thing when most Americans don’t understand this; it’s close to unforgivable when most journalists don’t–when they cannot even offer clear descriptions of how the mechanics of government are actually supposed to work.
We are, as he says, “ten years in,” and yet Trump is still able to project an authority he very clearly does not possess. His ability to do so is a direct consequence of civic illiteracy–not just the public’s lack, but that of a worrisome percentage of the media. And when cowardly Republican office-holders are joined by cowardly law firms and universities that have bent to financial extortion, and by plutocrats willing to trade the stable governance that made their riches possible for an autocrat’s promise of special treatment…constitutional limits evaporate.
Civic ignorance has consequences, and we’re experiencing them.
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