The Jeff Cumberbatch Column – The Rule of Law and Presidential Authority
“A successful president need not have a degree in constitutional law. But he should understand the Constitution’s grant of executive power.” “He should share Hamilton’s vision of an energetic president leading the executive branch in a unified direction, rather than viewing the government as the enemy. He should realize that the Constitution channels the president toward protecting the nation from foreign threats, while cooperating with Congress on matters at home.” –James Yoo, University of California (Berkeley)
I feel almost a sense of compulsion to apologize to readers of the Barbados Advocate for returning for a second week to a commentary on the any matter associated with the ne’er-do-well Trump presidency in the US. This is even more keenly felt when locally there is much fodder for a columnist; last week’s launching of what claims hopefully to be a third political way; an unseemly public disagreement between Board and Governor at the Central Bank; and an overdue determination from the Prime Minister as to the viability of the controversial Bridgetown Hyatt project However, today’s effort is concerned only tangentially with what is swiftly morphing into a U S kakistocracy and pertains rather to the ongoing battle between the Trump administration and the courts for the constitutional governance of the republic.
A few columns back, I had tentatively advanced the thesis that President Trump, having been abandoned by some of the leading lights of the Republican party under whose banner he ostensibly campaigned, might have adopted an attitude of “I-can–and-will-do-it-myself” and thereby assume the role of a latter-day monarch. While I am not prepared to argue whether or not this has become an actuality, his attitude towards judicial rulings that have been adverse to him leads one to conclude that he is behaving less than merely a disgruntled litigant and more like one who regards the prudential application of the law as an officious gadfly to his overweening ambitions.
To bring the point closer home, if this were a game of cricket in the road and the bat and ball were his, he would have long ago taken both up and gone home in a huff after disagreeing vehemently with the umpire’s verdict that he was clearly out.
Readers will be reminded that both the “so-called judge”, as Robart J. was so irreverently termed, and the three judge federal appeals panel have rejected President Trump’s attempt to prohibit entry into the US of nationals from seven largely Muslim nations. These rulings have driven a ZR through a major plank of the president’s efforts to “make America great again”, the appeals court ruling stating that the Trump administration had shown no evidence that anyone from the embargoed nations had committed or were likely to commit terrorist acts in the US. Mr Trump’s bold openly voiced discriminatory threat to ban Muslims as a whole could scarcely have helped his cause since such a sentiment clearly betrays an intention to discriminate on grounds of religious affiliation, a patently unconstitutional act, and relegates to an afterthought the consideration of national security.
The matter now moves to the Supreme Court for consideration. However, an initial hurdle for the governing administration is whether the case will be taken at all by that body. In a brilliant and well researched article, “Controlling Inherent Presidential Power: Providing a Framework for Judicial Review”, published in the Southern California Law Review, Professor Edward Chemerinsky of the De Paul University College of Law argues that “most suits to have a President’s act declared unconstitutional never reach the Supreme Court…” He references in support a number of instances among dozens where this has occurred, including disputes as to the authority of the President to impose wage price guidelines on government contractors and as to his authority to impose a 10% surcharge on most articles imported into the United States.
Even if the Supreme Court should decide to try the matter, however, the current jurisprudence is woefully unsettled. The author notes no fewer than four approaches to the question of whether the opening words of Article II of the Constitution to the effect that “the Executive Power shall be vested in a President of the United States of America’ are to be construed as vesting the President with powers not enumerated in the Article.
There are those, doubtless including Mr Trump himself, who hold fast to the interpretation that the President’s powers are untrammelled and that he is permitted to exercise authority not specifically granted by the Constitution, while others are, contrastingly, of the considered opinion that such plenary authority would be inconsistent with a Constitutional ethos of a government with restricted authority.
According to Professor Chemerinsky’s analysis, the approaches used by the lower Courts range from a clear denial of any inherent judicial power at all and that he must act pursuant to constitutional or statutory authority only, to the existence of a broad and substantial inherent authority, especially, interestingly enough in the current context, in the field of foreign affairs.
In accordance with the first perception, there is no room in US governance for a “presidential prerogative” equivalent to the “royal prerogative” claimed by British monarchs of yore and still claimed by some to extend to the local Governor General, itself an office created by Constitutional provision and thus inherently of limited authority. On this approach, if there is no condign constitutional provision authorizing the president’s action, then it is unconstitutional.
As for the broad authority in international relations approach that the lawyers for the President will doubtless be hewing towards in their arguments, this limits the narrow approach to internal matters only. In one 1936 decision, the judge wrote:
“ The two classes of powers (domestic and foreign are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution…is categorically true only in respect of our internal affairs…”
This approach reminds us “we are here dealing not with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations…”
Nonetheless, as if presaging the current dispute, after these dicta acknowledge that this power does not require as a basis for its exercise an act of Congress, it concludes ominously for the Trump administration:
“…but which, of course, like every other government power, must be exercised in subordination to the applicable provisions of the Constitution….”
The right to due process before any abrogation of an existing right is one such entrenched therein.
To be continued….