Will the constitution hold Trump back?

At times such as these we reach for The West Wing, don’t we? One of my favourite lines is from an episode in series two when Josh Lyman, the Deputy White House Chief of Staff, says that there are only two things that stop governments: money and politics.

As a constitutional lawyer I’ve always been struck by this truth. Law does not appear on Josh’s list. Governments will do whatever they can politically get away with, if they can afford it. Smart constitutions focus on finding ways of allowing governments politically to get away with less. Really smart ones also seek ways of controlling the government’s resources.

What are the prospects of the venerable but in some respects crumbling US Constitution finding ways over the coming four years of constraining the Trump presidency? The American system is, after all, renowned the world over for its famous checks and balances. These come in two forms: the substantive rights of states and individuals, which the constitution protects from federal interference, and the structural constraints that are built into the internal architecture of the federal state.

The real potency of the US Constitution is supposed to reside in the way it splits things up. First, there is the separation of powers. The President runs only the executive branch of government. Congress is outwith his control (still only ever “his”…). The same is true with the Supreme Court.

And then there is federalism. Washington is supposed to have strictly limited powers—expressly enumerated in the text of the Constitution. Where the Constitution is silent the power remains with the states respectively, or with the people directly. Such, at least, is the theory.

But will these structures actually bridle Trump? I am not optimistic. Trump’s party controls not only the White House but also Capitol Hill—both the Senate and the House of Representatives. While Trump is hardly an orthodox Republican, the alliances he will need and the coalitions he must now build are with his own side. He will not have to reach far across the aisle. And the modern political party is the enemy of the separation of powers, which is why, like Edmund Burke, the Founders were so suspicious of “faction.”

Turning to the Court, there is a vacancy right now and others are more likely than not to arise within Trump’s term. Justices are nominated by the president and ratified by the Senate. The future shape of the Court is thus in the Republicans’ hands.

As for federalism, I wrote in these pages in October that in America, federalism has failed. In the name of progressive politics the national government has been permitted—nay, encouraged—to grow vastly, and now terrifyingly, beyond the limits the 18th-century Constitution sought to lay down. When the states struggled with their economies, Democrat presidents took them over. When the states produced poor performance in education, it became a matter for the federal government. There has been a similar drift in housing, in healthcare and all other manner of social policies.

Ronald Reagan tried to reverse some of this, as did his brilliant but divisive nominee to the Supreme Court, Antonin Scalia (whose untimely death this year left the seat open), but they were almost entirely unsuccessful. If the president is the most powerful man in the world, this is not because the Founders intended it, and it is despite Scalia’s attempts to thwart the office’s might. It is because liberal after liberal, progressive after progressive, has assumed that Washington knows best, and that the states are there (in much the same way that the Germans see their Länder) as mere agents of federal policy.

Herein, perhaps, lie the seeds of hope. The states are much emasculated, but they still have a greater ability to affect and to disrupt the federal government than Washington has over the states. The last Republican president with an over-extended sense of the reach of the White House’s power, George W Bush, found that even among his most cherished policies that the states could, if they were determined, resist him.

After 9/11 his administration established the Department of Homeland Security—another vast increase in federal power resting, at best, on oblique constitutional authority. But in the US, there are about 10 state or local law-enforcement officers for every federal one. The Department of Homeland Security required the co-operation of State and local officers to achieve the objectives that Bush had set it. Some municipalities declined to co-operate, fearing that the authoritarian policies of the new federal arm of government would undermine community relations that have been carefully nurtured over many years.

The tables were turned. For so long the preserve of the American right, states’ rights to resist the federal government found new liberal champions. Perhaps it will be the same with Trump. Let him run Washington. But let the states revert to being the sovereign actors within a “more perfect union.”

Even if this were to occur in areas of domestic policy, however, there is no chance of the states being able to constrain a Trump presidency’s foreign policy. In the United Kingdom we are embroiled in a mighty legal battle about whether the government has the power to trigger Article 50, thereby commencing the UK’s formal exit from the European Union, or whether an Act of Parliament is required to confer this power on ministers.

In the US, the constitutional position is far clearer. The President is the Commander in Chief, and foreign policy is for the executive branch. Finding ways of constraining Trump’s whims in foreign policy will be much more of a challenge.