First 100 Days: Trump Runs Slap Bang Into the Constitution

Marci A. Hamilton

This article first appeared on the Verdict site.

President Donald Trump will keep historians and psychologists busy for decades as they plumb the depths to figure out how someone as untrustworthy, rude and unprincipled was elected president of the most powerful country in the world and then stayed in power (for however long that happens).

Then there are the fascinating questions regarding how his adult daughter can defend his “positive” attitudes toward women despite all evidence to the contrary. Lots of academic fodder.

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But we have to live in the present, and so we have the challenge of coming to grips with the history unfolding right before us. What you are watching is the beautiful, though very messy American constitutional structure come to life.

That is just what the Framers wanted in such times. The Constitution to them was a machine. Each element has its assigned job. No one element can succeed alone. The other pieces check the operation of the one piece and vice versa.

They did not expect the precision of a watch, but they did hope that this construct would tend toward the public good and away from individual self-dealing.

See, they believed that every individual who holds power will be tempted to abuse it, and that government structures must operate at cross-purposes to check each other.

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Senator Lindsey Graham (left) and Senator John McCain at the David Citadel hotel on January 3, 2014 in Jerusalem. Marci Hamilton writes that for a while it seemed the only Senators with the guts to play their appointed role of foil rather than servant to the president were Senators McCain and Graham, but they have now been joined with others who have finally figured out that history will judge them by their own actions, and that Congress is a check on the president, not his personal tool for self-aggrandizement. BRENDAN SMIALOWSKI/AFP/Getty

That principle is alive in three spheres: (1) the separation of powers between the three federal branches, (2) the separation of power between the federal government and the states, and (3) the separation of power between church and state.

They knew, and they were absolutely correct, that power unchecked is dangerous and combinations of power are dangerous to the people and the common good.

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Trump entered the White House with a minority of the American vote. Thus, he carried no mandate but he marched into the Oval Office as though he were the country’s savior who was brought to Washington to unilaterally and immediately dismantle as much government as he possibly could.

His campaign said he wanted to “drain the swamp,” but it became quickly apparent he actually wants to dismantle the federal government, except for the military.

He composed a cabinet of “anti-________” people. Each cabinet pick was selected not to carry on the policies that are the culmination of our history but rather to tear down the department. The one department to be enriched and where fully qualified people were appointed for the purpose of its flourishing is the Department of Defense.

With the swipe of a pen, he rolled back regulation after regulation trying to make the Departments of Education and Energy and the EPA disappear.

In any other system, this man would be a despot. But he’s in our system where he does not exist alone. For every executive order he issues, Congress has the power to enact a law that modifies his latest move.

Moreover, Congress has no obligation to follow his lead, which it will not on the EPA. Everywhere he looks to unilaterally conform public policy to his extremist tendencies, he is learning that hurdles have been intentionally constructed.

Among the three federal branches, the courts were the first to come out of the mist and remind us that, yes, even a president as cocksure as this one is limited by the Constitution, federal law, and plain old facts.

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The Constitution, which the courts enforce, has been a sticking point for him. The first travel ban and then the second are held up in court, as well as his sanctuary city funding threat.

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For a while it seemed the only Senators with the guts to play their appointed role of foil rather than servant to the president were Senators John McCain and Lindsey Graham, but they have now been joined with others who have finally figured out that history will judge them by their own actions, and that Congress is a check on the president, not his personal tool for self-aggrandizement.

His American Health Care Act proposal (to replace the Affordable Care Act (ACA)) could not be passed despite his arm-twisting and the White House bowling alley.

But the separation of powers is not limited to the push and pull between federal branches. We also have seen the states rise up against the new federal demands he has imposed on them, whether it be changes to the ACA and Medicare or threats over immigrant sanctuary policies.

These structural limitations do not favor one party over another, but rather are tools in the hands of either side in any given era.

There is deep irony in this Republican president wielding the Executive Branch like a teenager in a Corvette, because Republicans have railed against the size of the administrative state and the power of the president for decades.

Now they have a president of their own who has aggressively embraced the power of the presidency as he pursues measures some Republicans have sought for ages. Despite this display of machismo in the Oval Office, there is largely silence from the Republicans right now on the evils of an imperial presidency.

When a conservative (though now in hindsight moderate) Supreme Court revived the federalism doctrine in the 1990s by modestly increasing states rights and correspondingly modestly limiting Congress’s power over the states, many liberals argued that federalism is inherently conservative.

For example, in many law schools the sky was falling when United States v. Lopez was decided. As this era proves, they were wrong, wrong, wrong. Federalism is what makes it possible for the party out of political power in Washington to pursue its agenda. The states standing up against the president and his policies are a prime example of the system working as it should.

Finally, there is also the separation of power between government and the people. As I discussed here, we have the power of judgment, criticism and communication, which we must never give up. That judgment is reflected in recent polls, which shine a harsh light on the overreaching of a president who imagined a mandate he did not have.

All in all, this odd and often shocking president is where he should be: a cog in the wheel of public policy, not a solo pilot.

While it hasn’t happened in the first 100 days, with all elements of the system pushing against each other as they are, there is reason to believe that something good could come out of this presidency for the United States and not just one Donald J. Trump.

Marci A. Hamilton is a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania and the CEO and Academic Director of the nonprofit think tank to prevent child abuse and neglect, CHILD USA, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com.

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