It seems like every week there is a new constitutional anomaly coming out of the Trump White House, from his declaration of a national emergency at the Southern border to — most recently — his unscrupulous plan to outmaneuver the Supreme Court’s decision in Department of Commerce v. New York. Although the court stopped the secretary of Commerce from asking about citizenship on the 2020 census, President Trump ordered his team to find a way around it, possibly by executive order.
Presidents have pushed boundaries before, and the Constitution draws few red lines when that happens. Trump has put more muscle into enhancing presidential power than any of his recent predecessors, continually prompting the ubiquitous question: Can he do that?
The short answer is: That’s the wrong question. The right question is: If and when he acts, what is the consequence?
Remember that the Constitution creates three branches of government, each of which is positioned — and arguably obligated — to check the other two.
To answer “can he do that?” start by looking at the powers the other two branches have to hold the president in check. What can each of those branches do to stop the president? And perhaps more importantly these days, will those two branches exercise oversight authority? (For the Republican-controlled Senate, the answer is a resounding no.)
Congress can impeach, it can amend a law or pass a new law restricting the president’s power to do something. Congress can hold hearings so the public knows what’s going on and political pressure can be brought to bear on the president. Congress can also withhold funding to the executive branch, essentially starving it into submission.
If someone is individually injured by what the president did, that person or entity can file suit in a court. The court can issue an order — known as an injunction — stopping the president from taking the controversial action. This is essentially what happened in the Department of Commerce case. The Supreme Court told Commerce Secretary Wilbur Ross that he could not include the citizenship question on the 2020 census forms.
Hypothetically, if Trump crosses a previously uncrossed boundary by, say, refusing to recognize the electoral victory of an opponent in the 2020 presidential election (which some believe is a real possibility), what would stop him from remaining in office?
Ask yourself: What could and would the other two branches do in response to that scenario?
Congress could pass a law — although it’s hard to imagine what that law would say. Congress creates federal agencies, including the Department of Justice and the FBI, so it could change the rules of the game that govern those law enforcement entities. Those entities, however, answer to the president through his chain of command.
A big question in such a crisis would be whom would those folks take orders from on the day the new president is sworn in. Congress could make clear what those people must do in the event of a president’s refusal to hand over power. Or if Trump deemed the election illegitimate, Congress could refuse to agree with him — and do it in a bipartisan and public way — until he backed down. But this, too, is something that congressional members from Trump’s political party have been flatly unwilling to do.
Assuming an injured plaintiff with standing to sue could be identified, a lawsuit would be filed, invoking the judicial branch to force the president to step down and cede power to the president-elect.
As we saw with the Supreme Court’s recent decision refusing to adjudicate the constitutionality of partisan gerrymandering, the court could stay out of the fight altogether on the grounds that the issue is too political. Or it could agree to take the case and declare one person the winner, as it did in Bush v. Gore, deciding the contested 2000 presidential election in George W. Bush’s favor, and changing the arc of history forever.
If the Supreme Court were to issue a decision against Trump, then what? Would Trump refuse to abide by it (as appears to be the case in Department of Commerce, to the apparent chagrin of career DOJ lawyers)?
If he did, the question would then become how to enforce a court order. And the answer, again, would require looking to the powers of the other branches — this time, to the executive branch in particular, because it is charged with enforcing the law. A court might seek to hold Trump in contempt, an order that’s generally enforceable with fines or even jailtime. A federal marshal might be called in to arrest the wrongdoer and put him in jail until he is willing to comply with the order issued by a federal judge.
But wait — the U.S. Marshal’s Service answers to the president.
You see, answering the “can he do that?” question is a high-stakes game of logic and reasoning. Hop from one branch to the next and see what levers can be pulled or pushed to hold a renegade president in check.
If those levers go unmoved, or if they are properly moved but the results are ignored by the White House, then we no longer have a separation of powers. We have consolidation of power in the office of the presidency — precisely what the founders of this country sought to avoid.
Kim Wehle is a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation. Wehle is a professor at the University of Baltimore School of Law. Her book, “How to Read the Constitution and—Why,” will be published today. Follow her on Twitter @kim_wehle.
This is the sixth piece in a series by Wehle on understanding the Constitution. Read her analysis on constitutional literacy, constitutional rights, the country’s crisis of compassion, war power and the Supreme Court.