Trump will create a new constitutional norm

Jeffrey Toobin points out that our constitutional system wasn’t set up to deal with a Trump.

The Framers anticipated friction among the three branches of government, which has been a constant throughout our history, but the Trump White House has now established a complete blockade against the legislative branch, thwarting any meaningful oversight. The system, it appears, may simply be incapable of responding to this kind of challenge.

So the framers didn’t plan for assholes, aka malignant narcissists, aka psychopaths. Bit of a mistake, that.

Federal judges deal with disputes between Congress and the White House one case at a time, but that won’t do with this blockade.

But this approach by the courts—adjudicating one Administration claim of defiance at a time—will miss the point in the current era. There has never been a President who directed an open campaign of total defiance against another branch of government. It is simply misleading to consider these claims in isolation from one another, because the President has acknowledged that they are part of a coördinated campaign. The law has no clear mechanism for adjudicating these claims together—but they belong together. Trump is leading a political campaign, and it calls for a political, not just judicial, response.

The most obvious political response to Trump’s defiance of Congress—and thus of the norms of constitutional history—is impeachment. One article of impeachment against President Richard Nixon accused him of failing “without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas.” But the Trump Administration is likely to fight all subpoenas in court and wait for resolution there; only then will it be possible to say whether the resistance to all subpoenas is “without lawful cause.” And these cases will drag on. Indeed, Administration lawyers know that bad arguments, as well as good ones, can tie up the courts for months, if not years. (The litigation over Holder and the Fast and Furious documents just endedafter seven years.) Democratic leaders in the House are already skeptical, for political reasons, of pursuing impeachment, and lingering, unresolved disputes in the courts will make a push to remove the President even less likely.

So, after nearly two and a half centuries, Trump will create a new constitutional norm—in which the executive can defy the legislature without consequence.


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