The Fractured Jewel of Constitutional Democracy

 

By David K. Shipler 

            While President Trump has gilded the Oval Office in gold, he has sullied the crown jewel of the Constitution. He has done so with the collaboration of his Republican allies in Congress and the Supreme Court. The latest example is his White House ballroom, a superficial symbol of his deeper dictatorial passion.

There are many things wrong with Trump’s self-indulgent ballroom project: Its gargantuan bad taste (in Soviet-style scale). Its elitist, flamboyant luxury when millions of Americans barely make ends meet (“Let them eat cake,” scoffed Marie Antoinette). Its gateway for corrupt private contributors seeking presidential favors (“an offer he can’t refuse,” said the Godfather). Its deceptive use of public funds for the private pampering of the leader (Putin, Orban, Marcos, etc.)

            But most significantly, the ballroom is his latest hammer blow to the precious gem of the American constitutional system: the separation of powers, the checks and balances so ingeniously designed by the Framers who feared, presciently, the concentration of authority as they formed a central government. They created legislative, executive, and judicial branches (in that order in the Constitution) to watch and restrain one another.

Trump has bulldozed through those bulwarks. He did not deign to seek the legislature’s required approval before demolishing the East Wing of the White House, as if he were the owner, when it actually “belongs to the American people,” as Jacqueline Kennedy noted. He solicited “donations” to build an enormous ballroom but did not bother seeking congressional appropriations for the balance of the estimated $600 million cost, which will evidently be paid from the pockets of unwilling taxpayers. Neither of the other two branches of government is stopping him, not the Republican-controlled Congress nor the Republican-controlled Supreme Court, whose chief justice ruled last week that construction could continue for the time being.

            One wonders if the Framers had imagined how supine the legislative and judicial branches would become, how readily they would abdicate their roles.

“All men having power ought to be distrusted to a certain degree,” James Madison told his fellow delegates to the Constitutional Convention in that hot Philadelphia summer of 1787.  Defending the draft of the Constitution the following year, Madison wrote in Federalist No. 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

            And so we arrive at the edge of tyranny as the legislative and judicial branches combine their acquiescence to award Trump’s executive branch the power to remake government.

As if the Constitution had never been written, the president and his collaborators, including Elon Musk and his so-called Department of Government Efficiency (DOGE), unilaterally slashed the legislature’s appropriations for foreign aid, domestic spending, and scientific research. By cutting off funds and firing employees, Trump and Musk effectively eliminated agencies Congress had created, including the US Agency for International Development; the US Institute for Peace (dwarfed and renamed for Trump); the Consumer Financial Protection Bureau; and the US Agency for Global Media, which ran the international broadcasters, Voice of America and Radio Free Europe/Radio Liberty. The legislative branch, under the thumb of Trump’s dominion over his fellow Republicans, slept through its constitutional duty.

No peep was heard from the Republican-led Senate to defend the body’s authority to confirm presidential appointees under the Appointment Clause of Article II, Section 2, which requires the Senate’s “advice and consent,” even for a temporary figure like Musk, given the extent of his power, as a lawsuit argued. A federal district court judge agreed, noting that without going through the Senate, “the Appointments Clause would be reduced to nothing more than a technical formality.” But the judge’s preliminary injunction was swept away by the Fourth Circuit Court of Appeals.

Such has been a pattern in the judicial branch, where many district judges have temporarily blocked Trump’s actions, only to have their injunctions overturned in the appeals courts and the Supreme Court, which has acted hastily in its “emergency docket” where rulings are not justified by citing law, precedent, or the Constitution.

Emboldened by the higher courts’ acquiescence, Trump and his officials frequently ignore lower judges’ orders, especially in immigration cases. At least 31 flagrant violations of court orders (about 1 in 8 cases) involving widespread layoffs, funding cuts, and the detention of immigrants were tabulated in an Associated Press survey.

The administration’s defiance had immediate consequences. Even after a judge ordered the Education Department to retain mental health funding, for example, the Trump administration continued to block the money, forcing the dismissal of mental health professionals from the school system in Eureka, California.

Similarly, Trump officials refused to comply with a judge’s order to restore the longstanding practice of allowing immigration detainees to post bond and be freed pending the resolution of their cases. Judge Sunshine Sykes, a Biden nominee, accused the administration of trying “to erode any semblance of separation of powers,” as if “in a world where the Constitution does not exist.”

The Supreme Court has blocked one method Trump has used to exact tariffs, but he’s using alternative means. It has blocked his executive order barring birthright citizenship for anyone born in the US. But it has put few other obstacles in the way of Trump’s march toward autocracy.

The six Republican-nominated justices, three of whom were selected by Trump, have enhanced the powers of the executive to the detriment of both the legislative branch, and even of their own. For while district court judges who have ruled against Trump have conducted full fact-finding procedures, considered briefs and held oral arguments, many of those carefully reasoned findings have been dismissively brushed aside by the six “conservative” justices, often with one-sentence orders vacating injunctions and allowing the unprecedented onslaught by the White House to proceed.

Some of those right-wing justices have long supported a stronger executive. They have long questioned the ability of Congress to create regulatory agencies whose commissioners could not be fired by the president without cause. Now they have ruled that such replacements for no reason at all are permitted—except at the Federal Reserve, whose politicization would delegitimize US economic policy, bringing disruption for the wealthy, i.e., themselves. This guarantees dramatic swings in regulatory schemes from administration to administration, as in undemocratic countries that see repeated transfers from dictator to dictator.

The label “conservative” is a misnomer. What is it that the Republican justices and the Republican legislators seek to conserve? Not the separation of powers, obviously. Not the crown jewel of the Constitution. Had they lived during the American Revolution, which side would they have been on?