“Unprecedented.” It’s a word that gets tossed around a lot lately, with regard to Donald Trump. This time, however, it’s justified. Behind all the chaos, confusion and international consternation of Trump’s thinly veiled Muslim immigration and travel ban there’s a clear-cut constitutional crisis brewing, as argued on Twitter by Donald Moynihan, director of the La Follette School of Public Affairs at the University of Wisconsin.
The crisis — resulting from U.S. Customs and Border Protection agents blatantly disregarding federal court orders — had already been noted by reporters he cited such as Betsey Woodruff and Matthew Rosenberg. But Moynihan had the background to understand what was really going on in a way that most others don’t, combining the perspective of legal history and practice with a grasp of how customary and normative practices sustain a constitutional order.
As Moynihan pointed out, our system of government rests on the framework of Marbury v. Madison, a landmark 1803 Supreme Court case that established the principle of judicial review. When the branches of government clash, the executive branch must follow the direction of the courts, without exception. “If you don't like it,” Moynihan wrote (with “you” signifying the executive branch), “appeal until you get to SCOTUS. That’s how it works.” Therefore, “If parts of the Exec branch are ignoring court orders, that’s a constitutional crisis. Open challenge to the rule of law in the US.”
Moynihan’s tweets reminded me of Mark Tushnet’s 2004 essay “Constitutional Hardball.” The term refers to political claims and practices that are technically constitutional but that violate existing norms and assumptions. Tushnet calls this combination of norms and assumptions a “constitutional order.” Hardball is played primarily to try to disrupt and change a constitutional order but the practice can also be used to defend one under siege.
I’ve written about constitutional hardball four times between the 2014 midterms and Election Day 2016. Tushnet argued that “constitutional hardball is the way constitutional law is practiced distinctively during periods of constitutional transformation” — for example, during the transition from the pre-New Deal order, in which Congress initiated major legislation, to the New Deal order in which the president typically did so.
As he also noted, the concept “does seem to describe a lot of recent, that is, post-1980, political practices. The reason, I believe, is that we have been experiencing a quite extended period of constitutional transformation,” so much so that “it might come to seem as if constitutional hardball was the normal state of things.”
In March 2015, I argued that conservative version of constitutional hardball was turning pathological:
The more conservatives push, fail, double down and repeat, the more intensely they feel set upon by dark forces they can scapegoat as the real cause for everything that’s gone wrong with America, their lives and their world.
These tendencies combine to produce a powerful psycho-political dynamic, quite independent of anything in the real world.
A few months after that, Donald Trump launched his presidential campaign. Up to that point, conservatives’ constitutional hardball largely centered on reversing the New Deal constitutional order, and its "Great Society" and civil rights-era fruits. The Citizens United v. Federal Election Commission decision was a great victory for them in this struggle, turning back campaign finance law 100 years. Crippling a key part of the Voting Rights Act took us back to 1964. But mostly they continued to fail, and Trump’s authoritarianism was their final answer to all the frustration they felt. If you’re going to play constitutional hardball, why mess around? Why not go after Marbury v. Madison? Why not take it all?
Thousands of lawyers understand how Marbury v. Madison works in the courtroom. Moynihan understands how it functions (or does not) on the ground. As he noted, both members of Congress and immigration lawyers were stonewalled by customs officials, while John Kelly, Trump’s secretary of homeland security, waffled over how, where and whether to enforce the president’s order.
“Since my background is [having] a Ph.D. in public administration, I have a good working knowledge of U.S. institutions and policymaking processes,” Moynihan told Salon. “Members of Congress are fond of reminding executive branch officials that [the latter] are beholden to them, not just to the president.” It is Congress that supplies every federal agency with its budget, and along with that “specific directives as to [its] role."
Continued Moynihan: “It’s remarkable to me that when an actual member of Congress would turn up at your doorstep, a manager in that agency would not try to be responsive to [his or her] concerns.” He added, “It suggests [that agency staffers] view obeying the guidance of the president as superior to any other direction. This is troubling precisely because the founders designed a separation of powers so that no single actor (in this case the president) had sole control of administration.”
After years of right-wing hysteria over president Barack Obama’s alleged tyranny, Republicans now appear unconcerned when blatant examples of tyranny are blasted in their faces. “The response by Congress has been poor," Moynihan said. "Apart from the handful of representatives who got to the airport, it's been mostly silence. The courts prioritize looking at congressional intent when they look at whether executive action is constitutional, so Congress and the judiciary should serve as partners against executive overreach.
Added Moynihan: "Members of [Department of Homeland Security] oversight committees, and general government oversight committees [headed by Rep. Jason Chaffetz and Sen. Ron Johnson, respectively] should have been calling the White House and making public statements about the potential illegality of what was going on. If they did, the secretary of DHS would have listened.”
Trump may have frozen GOP lawmakers in fear, so far. But as Moynihan suggested, Trump has no actual experience with how government works on the inside, which makes it full of surprises — for him. In the first few days, it was only Democrats who directly confronted Trump’s minions. But Republicans are surely worried as well, and that’s only likely to deepen the mood of crisis.
“Marbury v. Madison is central to why we think of ourselves as a nation of laws, not of men," Moynihan said. It's what distinguishes us from countries where the executive branch can lean on the courts to ensure they give the person in charge the right decision. It is the basis for guaranteeing the Bill of Rights. If the executive branch starts ignoring court orders, they are signaling they no longer believe in Marbury v. Madison. That's a very different system of government from the one the U.S. has enjoyed in the past.”
At one level, Trump seems to realize this, sort of. A Department of Homeland Security press statement of Jan. 29 promised to "comply with judicial orders," even as it declared that “President Trump’s Executive Orders remain in place” and that the department would "continue to enforce all of President Trump’s Executive Orders.” Clearly, Trump’s impulse is to regard the rule of law with contempt, but he still feels compelled to pretend otherwise.
That apparent contempt for the rule of law is exactly what makes Trump unprecedented. Only one previous president has openly defied a court order — and that was Andrew Jackson, the insurgent populist with whom Trump has often been compared. Moynihan couldn’t cite any other federal examples. “We have examples at the state and local level — e.g., school desegregation, refusing to offer wedding licenses to gay couples,” he said. “But those are less concerning since we assume the federal executive branch will ultimately make sure the law is implemented."
Even Jackson’s defiance came in response to a Supreme Court ruling — that is, at the very end of the judicial process and not as his initial response. Tellingly, the issue was a racist action that we would likely view today as a historical crime: the removal of Native Americans from Georgia to make room for white settlers, which was very popular with Jackson’s base. Still, he did not begin with defiance of the courts. Trump’s instinctive reaction, Moynihan has suggested, reflect his background in private business.
“Trump’s inner circle — [Steve] Bannon and [Stephen] Miller, who wrote the [executive order] or his chief of staff [Reince Priebus] — have no significant executive branch experience and scarcely any government experience at all,” Moynihan noted. “They have an ambitious agenda. Trump is used to an environment where, as a CEO, he can demand something to happen and it will happen. Even with unified control of the federal government, he has shown no taste thus far for working with Congress.”
Trump's voter base might like all this, but it’s a profoundly worrisome sign, in Moynihan’s view. “The haste of the EO, the failure to follow standard processes of consultation, the rush to implement without preparation: all of these reflect a distaste for the processes that come with governing,” He said, “I worry this distaste extends to the judicial branch. There may be an attitude of ‘We got elected, why do we need to listen to some liberal judge in New York?’”
In reality, however, Trump’s power remains limited. “He can write Executive Orders, but not pass laws — and those EOs, by definition, need to be consistent with the law,” Moynihan said. The real problem comes if other government figures accept Trump’s attempt to rewrite the rules.
“Trump gains power if people are willing to bypass traditional checks and balances," Moynihan continued. "We really have a constitutional crisis if other actors in the executive branch — Cabinet members and rank-and-file officials — give Trump unusual latitude: By accepting EOs that have not been vetted and may be illegal, by accepting White House interference in implementation — e.g., Bannon telling DHS to include green card holders — and by ignoring court orders.”
If Trump is attempting a slow-motion coup aimed at overturning centuries of precedent and practice, Moynihan said, "Cabinet members can be especially important. At this stage, Trump has reason to fear very public resignations from the people he selected. Kelly should have refused to implement the order until it was properly vetted. He should have also publicly directed DHS staff to fully follow any court orders relevant to their jurisdiction.”
Trump's forebear Andrew Jackson believed that there was nothing especially complex about governing and denigrated expertise. He removed federal employees who opposed him and replaced them with loyalists. He was the father of the "spoils system" that made 19th-century federal government corrupt and incompetent. Things got so bad that the major parties ultimately agreed they were better off having government competence rather than endless opportunities for patronage and legislation was passed creating the permanent civil service.
Trump shares Jackson’s contempt for government expertise and, based on his first 10 days in office, seems committed to uprooting all opposition within the civil service system. There is no reason to believe this will not again lead to corruption and poor performance, as it has in the past.
Moynihan said he sees signs of hope in the public "dissent memo" from career State Department officials, who sought to explain why Trump's ban for immigrants and travelers from certain countries would hurt the campaign against terrorism. Moynihan was troubled by the White House press secretary Sean Spicer's suggestion that any career officials not supportive of Trump's agenda should resign.
That's not how the system is designed to work, Moynihan said. “We have a career civil service precisely to avoid implementation becoming highly politicized and tied to one party or politician. The duty of these career officials is to the Constitution first.”