Who’s Afraid of the Big Bad Trump?

We are approximately eighty days into the presidency of Donald J. Trump, and the American Republic still stands. The United States has yet to start World War III, the plan to build a wall on the U.S./Mexico border remains a pipe dream, and the Constitution and Bill of Rights are still intact. While many of President Trump’s actions as president have been controversial, some of the worst attempted abuses of the new administration’s power have been prevented by coordinate branches of the federal government.

The very constitutional system of checks and balances decried by many on the Left (and some on the Right) as the anachronistic relic of a bygone era designed to impede progress, has worked to prevent the abuse of the power of the federal government, just as the Framers designed and intended over two hundred years ago.

One of President Trump’s primary campaign promises was to increase security by instituting tighter controls on the U.S. immigration system. On January 27, 2017, President Trump enacted an executive order designed to prevent immigration to the U.S., on a temporary basis, from seven majority-Muslim countries. This order was quickly challenged in multiple federal courts, with several parts of the order being stayed by five federal judges as applicable to particular individual plaintiffs. This culminated with U.S. District Judge James Robart’s issuance of a nationwide temporary restraining order halting enforcement of the order on constitutional grounds. On March 6, 2017, President Trump released a revised executive order which temporarily banned entry into the United States from six Muslim-majority countries. Again, the order was immediately challenged in federal court, with U.S. District Court Judge Derrick Watson quickly issuing a temporary restraining order which has now become a more serious preliminary injunction. The Trump Justice Department is appealing both rulings.

While judicial review of congressional statutes (and actions of the executive) was not explicitly provided for in the text of the Constitution, and would only come to be officially recognized in Marbury v. Madison, Alexander Hamilton describes in Federalist #78 this function of the federal judiciary in the new American Republic. Hamilton writes that, “[W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former…[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.” While lower federal courts are creatures of statute not originally envisioned by the Framers, and they could hardly have foreseen the modern use of executive orders or application of judicial review to the actions of the executive, the federal judiciary continues to serve as a check on the arguably unconstitutional actions of its coordinate branches.

Another one of President Trump’s campaign promises was to repeal and replace former President Obama’s signature piece of legislation: The Patient Protection and Affordable Care Act, or as it is commonly known, “Obamacare.” On March 24, 2017, after having spent months (and having spent years criticizing it) working to craft a bill to repeal and replace Obamacare, House Speaker Paul Ryan was forced to pull the bill and prevent a vote once it had become clear that it would fail. Seemingly having assumed that reluctant members of his party would have a change of heart and vote for passage despite previous statements to the contrary, Leader Ryan later told reporters that “[m]oving from an opposition party to a governing party comes with growing pains. That is the growing pains of government. We were a 10-year opposition party.” Given the political capital already expended, there is little doubt this will not be the GOP’s last effort to repeal or modify Obamacare.

The Framers envisioned that Congress would be the primary and most powerful branch of the new federal government. But their constitutional designs included both lateral checks and balances as well as institutionally based horizontal ones. Not only would both houses of Congress be required to agree on legislation before it would be sent to the desk of the president, but each chamber would be subject to the competing concerns and incentives of its individual members. It was expected that various factions representing competing interests in a large republic would ensure that only those measures with broad appeal would muster the required support for passage. In Federalist #10, James Madison wrote that, “[H]owever small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude.” With the recent failure of the Obamacare repeal, we again find the system envisioned by the Framers functioning as intended.

Finally, President Trump promised to only nominate conservative textualists, in the vein of recently departed Justice Scalia, to fill vacancies on the Supreme Court. As the nomination of Judge Neil Gorsuch stews in the Senate, we are left to wonder whether democrats will attempt use their “advice and consent” power to filibuster President Trump’s nominee, a move that can only be overcome through the “nuclear option” of changing the Senate’s filibuster rule for Supreme Court nominees. Only time will tell.

While the potential for unconstitutional actions by the Trump Administration, like any presidential administration, remains high, we should take comfort in the fact that our unique constitutional system appears to still be functioning as designed and intended. As noted by Patrick Henry, “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government — lest it come to dominate our lives and interests.”

No matter which party is in power, we can only hope that future Americans will continue to enjoy the “blessings of liberty” that our carefully crafted, yet fragile, system of government provides.

Timothy Snowball is a third year Juris Doctor candidate at The George Washington University Law School who is interested in constitutional law, history, and government. Tim holds degrees in political science from the University of California Berkeley and Grossmont College in San Diego.


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