Welcome to the Weekly Constitutional, where a legal text or other formal document is used as a basis for a discussion of a topical law and policy issue. This week’s text is the constitution of the United States.
Overnight, in a post on his own social media, the president of the United States Donald Trump described himself as a king. It was then, in turn, promoted on other social media by the White House account, complete with a fake Time magazine cover showing Trump wearing a crown.
It was, of course, a joke—a way of saying a thing without wanting to suffer adverse consequences. “I am only joking” and “It was only a joke” basically mean “I want to say this, but free from any adverse effects of doing so”. It is a form of ethical immunity, to complement a taste for legal immunity.
Yet there is something in this joke that is worth further thought. This is because Trump’s view of his presidential power is pretty much indistinguishable from absolute monarchy. He believes that all legal and political power flows from him, and that any attempt to check and balance that power is inherently invalid and to be eliminated and discredited.
This conception, or misconception, of power goes beyond the so-called unitary executive theory of presidential power by the simple expedient of omitting the word “executive”. Trump not only believes all executive power is vested in him, but that he can also do things which are reserved for the legislature and for the judiciary. His executive orders override legislation and can defy court orders. He believes in unitary power and that power is his alone.
In this Trump believes himself to be a ruler whose decrees and proclamations have priority and the force of law, and can determine disputes—and whose pardons free supporters from sanctions.
In the United Kingdom, the constitutional theory is still that all legitimate power flows from the Crown. That is why Acts of Parliament require royal assent before they have legal effect. And that is why the inherent jurisdiction of the High Court of England and Wales comes from the Crown being the fountain of all justice.
But these royal imprints are formalised and institutionalised: a King or Queen of the United Kingdom cannot legislate or judge at will. Even the diminishing scope of the royal prerogative, where the executive can do things with legal effects without statute, is now heavily regulated by judicial review.
For those who devised the constitution of the United States, even a well-regulated constitutional monarchy was unacceptable, both practically and conceptually. The “founding fathers” were careful to ensure that power was provided for by the constitution, and not by the presidency. Indeed, the presidency is set out as one branch of three organs of the federal government, each with their separate powers.
Article I section 1 of the constitution says “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Article III section 1 provides “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
You will see no mention in either of those two passages about the ultimate source of power being the president. The legislature and the judiciary expressly have their own powers, without reference to the executive. Like two parts of a trinity, they are equal and separate.
And it is this context that Article II section 1 provides that “The executive Power shall be vested in a President of the United States of America.” This does not mean all power, but powers distinct to the executive and not the legislature and judiciary. For the “founding fathers” there was none of the English nonsense about power flowing from the Crown. The ultimate sources of power were in the constitution, and not a monarch.
The kingly pretensions of Trump mean that what he commands as an “executive order” overrides what Congress and the courts may do otherwise. It is not so much a robust or extreme interpretation of the Article II section 1; it is an erasure of section 1 of Article I and Article III.
Perhaps soon Congress and the federal courts will assert themselves. Perhaps even Republican legislators will resent being robbed of their power of law-making. Perhaps the United States Supreme Court will follow a recent decision of its United Kingdom counterpart (covered in last week’s Weekly Constitutional) and firmly remind the executive that it cannot pick and choose which court orders to follow.
Perhaps. But until and unless the other organs of the state counter these constitutional trespasses, rather than constantly forgiving him who trespasses against them, you have an ever-widening reach of presidential power. Only notions of unitary and absolute power can explain this practice.
And while Trump does this, the onus must be on those who are failing to challenge effectively this expansion of presidential power. They may protest and complain, but unless they do something to limit this power surge, those protests and complaints are also mere words without consequence. The opponents of the president may as well say they are only joking too.
