People & Power

The Constitution vs. Trump

How President Trump’s opponents believe the US Constitution may prove the most effective barrier against his policies.

Like every American president before him, Donald Trump has sworn “to preserve, protect and defend the Constitution of the United States“.

But his opponents say he’s been doing almost the exact opposite since he came to power.

Their hope is that by making it clear (be it through legal challenge, protest or the ballot box) that President Trump is indifferent to the responsibilities of his office and routinely flouts the various amendments enshrined in the Bill of Rights, they can use the constitution against him and bring his term in the White House to an early close.

So what are their chances of success? With the various strands of the anti-Trump “resistance” beginning to consolidate, Bob Abeshouse has been finding out. 


by Bob Abeshouse

President Donald Trump has unleashed concerns about constitutional government in the United States that have not been seen since the days of Richard Nixon in the 1970s.

The level of political activism that has arisen to resist Trump and defend constitutional norms has also not been seen since the Nixon years. But support for Trump remains strong within the Republican party, which controls both houses of Congress.

How the constitutional battle currently under way between the president, politicians and the people plays out will determine the trajectory of American democracy for years to come.

President Trump’s commitment to the US Constitution has been called into question repeatedly by his actions and words. He has attacked the freedom of the press, and the independence of the judiciary.

Then in May, he fired then FBI director James Comey who was investigating possible collusion between the Trump campaign and the Kremlin in the 2016 presidential election.

A president telling a law enforcement officer not to enforce the law is a textbook definition of obstruction of justice.

by Rick Perlstein, historian

In February, he met with Comey a day after National Security Adviser Michael Flynn resigned amid controversy over his contacts with the Russians. Comey says Trump told him, “I hope you can see your way clear to letting this go, to letting Flynn go.”

“A president telling a law enforcement officer not to enforce the law is a textbook definition of obstruction of justice,” according to historian Rick Perlstein. “That’s in a legal sense. In a constitutional sense that sort of protection of malefactors was precisely what the founders of this country had in mind when they conceptualised the instrument of impeachment. We know this from the records of the Constitutional Convention.”

Perlstein has written three bestselling books about the conservative movement in America, including Nixonland, which examined Richard Nixon’s rise and fall.

Perlstein believes that Trump “is profoundly more dangerous to the basic conceptions of law and order than Richard Nixon was on his worst day.”

As Perlstein sees it, Trump regards his powers as those of king. “He can’t even conceptualise the possibility that a member of the federal bureaucracy, whether it’s the head of the Justice Department, the head of the FBI, or the head of the Environmental Protection Agency would act independently of the will of the president,” he says. “In America you’re allowed to do that. It’s a very important part of how our government runs. But I think that the case of Trump has proven to be so extreme and his abuses of power so absurd that it’s really awakened the civic instincts in all sorts of Americans.”

In fact, legal and civic opposition to President Trump and his policies has been intense. The American Civil Liberties Union (ACLU) has seen its membership grow by more than one million since Trump was elected, and has been in the front lines of the fight to defend the Constitution.

The ACLU responded swiftly when Trump signed an executive order in January barring citizens from seven majority Muslim countries for 90 days and all refugees for 120. Its lawyers filed the first lawsuit in New York challenging the order and secured a nationwide injunction. When the administration issued a revised travel ban in March, the ACLU blocked it again, maintaining in court that it still violated the Constitution’s Establishment Clause.

David Cole, the ACLU’s national legal director, notes that “the first principle of the Establishment Clause is that the government cannot either favour or disfavour a specific religion. And this ban, we argued, was targeted at Muslims, was designed to target Muslims.”

The Muslim ban 

In May, hundreds turned out to protest when the Trump administration appealed against the injunction blocking the revised travel ban in Virginia before the 4th Circuit Court of Appeals. Suja Amir, who was born in the United States, said she felt compelled to join the protest because the Trump administration “is trying to promote an agenda that says some religions are acceptable in this country and some religions are not.”

US Justice Department attorneys argued that the judges should ignore what Trump said on the campaign trail about keeping Muslims out of the United States, and consider only what was written in the order itself.

But the judges noted Trump’s call for “a complete shutdown” of Muslims coming into the United States, and upheld the injunction blocking the travel ban.

US Attorney General Jeff Sessions appealed against the decision to the US Supreme Court. On June 26, the court partially backed the government’s position, but said the ban could be applied to people who have family or business ties in the US. The Justices will hear arguments about whether the ban is lawful in the autumn.

John Malcolm, who oversees work on constitutional issues for an influential conservative think-tank, The Heritage Foundation, believes the Supreme Court will side with the president. Malcolm argues that “Congress and the Immigration and Nationality Act have given the president complete discretion to bar the admission of any alien for any length of time if the president determines that doing so would be in the best interest of the United States and not to do so would be detrimental to national security.”

He echoes the line of government lawyers who claim that the six majority Muslim countries in the revised travel ban were picked because they “are state sponsors of terrorism or they are failing states that don’t have a capacity to do proper vetting or they don’t cooperate with us.”

Cole takes issue with the national security rationale. “We had been proceeding absolutely safely long before President Trump came to office, allowing people from these countries to come to the United States subject to the usual kind of review and vetting processes that apply,” he says. “So there’s no showing that what was in place did not work.”

For Cole, “the bottom-line question is can the president of the United States use the immigration authority to condemn a religion, and I think the answer to that has to be no.” Even though there is a Republican-appointed majority on the Supreme Court, Cole believes that opponents of the travel ban have a strong case and can win there. “The majority of the Supreme Court’s justices have been conservative for about 40 years. And nonetheless sometimes the government wins, sometimes the government loses.”

Demonstrators spell out
Demonstrators spell out “# No Muslim Ban” during the “Boston Protest Against Muslim Ban and Anti-Immigration Orders” [Brian Snyder/Reuters] 

President Trump and the Constitution 

The ACLU is also fighting to stop an executive order that threatens to cut off funds to so-called sanctuary cities. These are jurisdictions where police do not ask residents about their immigration status so that they won’t be afraid to report crimes. A federal district judge in California issued a nationwide injunction. He agreed with the ACLU that the order is unconstitutional because its aim is to coerce cities and states into enforcing federal immigration law.

Public concern over the clash between President Trump and the Constitution was evident at a Tax Day protest in April, when Americans pay their taxes. Hundreds of thousands gathered in Washington and other cities to protest against the unprecedented conflicts of interest presented by Trump’s business empire, and his disregard for the Constitution’s Emoluments Clause.

The Emoluments Clause, Article I, section 9 of the US Constitution, declares that “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

Citizens for Responsibility and Ethics in Washington (CREW) has filed a lawsuit against the president claiming that he is in violation of the Emoluments Clause because of his business interests, including his ownership of the Trump International Hotel in Washington, DC.

Richard Painter, the vice chair of CREW, says: “It was quite clear that foreign diplomats were rushing to book rooms at the Trump hotel and book ballrooms to have big parties at the Trump hotel to try to impress the incoming president as soon as the election was decided. And that’s exactly the type of situation that the founders of this country did not want going on.” Painter notes that Trump “did not impose the travel ban on countries where he is doing business.”

President Trump says that he has put his companies in a trust to be run by his two sons, and claims that any profits while he is in office are perfectly legal. But Painter says that Trump “needs to sell off the business interests. Merely putting the business interests in the hands of his sons or in the hands of independent trustees doesn’t suffice if he is going to continue to own the business interests.”

“This will be a much, much better way to handle it if we can resolve this in the courts and then have the president comply with whatever court orders are handed down,” Painter says. “It’s much better for the courts than for Congress to have to resolve this through the very ugly process of impeachment.”

Malcolm argues that the Emoluments Clause may not even apply to the president, and that a ruling in CREW’s favour “would prevent any businessman with any transnational business practices from ever running for public office. And I suspect that a lot of people who are making this argument want precisely that.”

President Donald Trump takes the oath of office [Jim Bourg/Getty Images]
President Donald Trump takes the oath of office [Jim Bourg/Getty Images]

We’ve brought a community together’ 

The Justice Department is trying to get CREW’s lawsuit dismissed, but in recent weeks the attorneys general of Maryland and the District of Columbia, as well as nearly 200 Democratic members of Congress, have filed emoluments lawsuits against the president.

Painter is confident in the strength of CREW’s case. “We now feel that the president is in violation of the Constitution,” he says,” because he’s receiving loans from the Bank of China for his real estate, trademarks from China, other business arrangements that could be with foreign governments anywhere in the world. We have no idea because he hasn’t disclosed his tax returns. He could be dealing with the Russian government for all we know.”

Trump continues to assert that Americans don’t care about his refusal to release tax returns, something every president has done since the 1970s, because he “won”. But the demand that he release his returns was a focus of protests in 120 cities, including the nation’s capital, on Tax Day. Indivisible, an online initiative that has given rise to more than 6,000 local groups opposed to Trump and his policies, played an important role in the demonstrations.

Ezra Levin, a former congressional staffer, is one of the co-founders of Indivisible. He and his wife published a political action guide on how to pressure members of Congress. It’s based on the successful tactics of the conservative Tea Party movement that swung the Republican Party to the right and created enormous obstacles for the Obama administration.

“It’s civics 101, it is going to local district offices, it’s going to public events, it’s making calls. That works,” Levin says. “It is focused on your own members of congress because the bottom line, the truth is they want to get re-elected. They care more about what their own constituents think than any individual thing Donald Trump wants to get done.”

In February, Indivisible groups packed town halls, pressuring their congressmen to stand up to Trump and oppose Republican efforts to roll back the healthcare reform passed under President Obama, the Affordable Care Act, also known as Obamacare. “The very first priority of this administration in Congress was to eliminate the Affordable Care Act,” Levin says. And because of the pressure created by citizen groups “it didn’t happen, it couldn’t even get a vote.”

People are really, deeply upset about healthcare ... all of a sudden feel that the underlying sense of security in their lives can fall away at any moment because of idiocy in an administration that has no checks or balances that are functional any more.

by Elizabeth Juviler

New Jersey 11th for Change is one of the Indivisible groups that got their Republican congressman, Rodney Frelinghuysen, to oppose the healthcare changes backed by Trump.

The group has 6,000 members on Facebook, and hundreds who turn out regularly for weekly protests at their congressman’s office, educational meetings and other events.

According to co-founder Elizabeth Juviler, the group is made up of “mild-mannered suburban people” of all stripes – Democrat, Republican and Independent – who think Trump has unleashed “an onslaught on democracy” that must be countered. Frelinghuysen has refused to hold a public forum where their concerns can be discussed.

While protesting outside Frelinghuysen’s office on a recent Friday, New Jersey 11th for Change members expressed concern about Trump’s firing of Comey, and the Republican effort to repeal and replace the Affordable Care Act.

“People are really, deeply upset about healthcare,” Juviler says. They “all of a sudden feel that the underlying sense of security in their lives can fall away at any moment because of idiocy in an administration that has no checks or balances that are functional any more.”

In early May, Trump and House Republicans tried again to pass a bill repealing Obamacare. This time they succeeded and the US Senate is now considering the House bill.

The Senate bill, which must be reconciled with that of the House, cuts subsidies that help people buy coverage. And it reduces federal support for the expansion of Medicaid under Obamacare that enables states to provide health insurance to tens of millions of people, including the elderly in nursing homes. Frelinghuysen supported these changes to Obamacare the second time the House bill was brought up for a vote.

Juviler believes that Frelinghuysen’s flip flop on the health care issue has created an opening for a Democrat to win his seat in 2018. “It’s one vote and it’s a vote that really gets to the heart of the district,” she says.

The Republican effort to repeal and replace Obamacare is driving a great deal of the civic resistance to Trump. In the 1960s, Perlstein says, “one of the reasons tens of millions of young people were willing to devote their lives to fighting against the Vietnam War was the risk of going to a war and dying. We see it with the Affordable Care Act where the threat once again is death. It’s a very powerful organising tool. I think that the Republicans had no idea what they were messing with.”

Fighting the repeal of Obamacare has also been a focus of People’s Action, the fastest-growing community organising network in the US with affiliates in 30 states and more than a million members. George Goehl, the co-director of People’s Action, says the affiliates are determined not only to resist Trump, but to advance a progressive agenda in the electoral arena.

“We are moving our million people to be part of an army that is going to register voters, knock on doors, make phone calls,” Goehl says. “We’re also developing hundreds of candidates across the country who run anywhere from city council to governor.”

For a lot of people the election in November was a trauma and we can't be complacent any more, I think that's a lesson that's been learned deeply and won't be forgotten

by Juviler

Goehl, who has been part of strategy discussions at the Democratic National Committee, argues that the Democrats can win back white, middle-class voters who went for Trump. “But we’ve got to have a small town and rural agenda on the left,” he says. “And that’s a big priority for us. We’re actually dramatically increasing our organising in small-town communities throughout the Midwest and Rust Belt right now.”

A great deal is riding on the 2018 midterm election. If the Democrats can win the House in 2018, they can not only stymie Republican policies, but will have the power to launch impeachment proceedings against the president.

Kyle Kondik, the managing editor of Sabato’s Crystal Ball, which analyses US election races, argues that the Democrats could indeed win back the House in 2018. “We’ve had 39 midterm elections since the Civil War, and the president’s party has lost ground in the house in 36 of them,” he says. “Democrats need to pick up 24 house seats to win the house next year, and that would not be out of historical norms for them to be able to do that.”

Trump has historically low approval ratings and less than 30 percent of the public approves of Republican plans to repeal and replace Obamacare, factors that Kondik says could lead to a so-called wave election favouring Democrats. In addition, the legal issues that have “cast a sort of black cloud over the White House may make problems for Republican turnout in elections down the road, be it 2018 or 2020,” Kondik says.

But Kondik does not expect Republicans in the House and Senate to break from Trump any time soon. “So long as Republican approval of Donald Trump remains high in the 70s or 80s,” he says, “I think Republican lawmakers are going to rally around him.”

Malcolm doesn’t think there is any reason for the Republicans to abandon Trump. “We’re a long way, I think, from any kind of a legitimate claim that President Trump ought to be impeached,” he argues. “Saying to an FBI director, ‘Look, this guy you’re looking into, he’s a really good guy. I hope you decide to leave this alone’ doesn’t come anywhere close to either impeding an investigation or manifesting any kind of a corrupt intent.”

But, in Perlstein’s view, the Republicans are putting the Constitution at risk for the sake of passing tax cuts and other conservative policy priorities. “It remains to be seen whether the Republican Congress will fulfil its duties with regards to its constitutional role and status as a co-equal branch of government that is put in power in order to preserve the liberties of the American people against the power of a tyrant,” he says. “We’ll see.”

He does not hold high hopes in that regard, and believes the election in 2018 will be the most important vote in the past 50 years.

Whatever the outcome of the 2018 midterm elections, however, opponents of Trump believe that resistance to him has given rise to a new civic space in America. “The beautiful thing about this movement is that it is built from the ground level,” Levin says. He thinks Indivisible groups are “creating a basic progressive infrastructure that can push for positive policy wins at the state and local level and, we hope, at the federal level once we regain some of the tools of power.”

Juviler agrees that the new local organisations that have formed around the US aren’t going away. “We’ve brought a community together in a really broad way. We’ve made friends, our social lives have expanded,” she says. “And for a lot of people the election in November was a trauma and we can’t be complacent any more, I think that’s a lesson that’s been learned deeply and won’t be forgotten.”