Constitutional Crisis Lurks Behind Trump’s Obsession With His Public Mandate

By Pam Martens and Russ Martens: January 26, 2017 

Donald Trump

President Donald Trump

On Monday, Tyler Cowen, an economics professor at George Mason University, wrote an opinion piece for Bloomberg News that offered several thought-provoking reasons that Trump and his staff are willing to tell bald-faced lies that are easily debunked. The column came after a weekend where Trump and his staff appeared neurotically obsessed to convince big media that Trump is the most popular president in history, notwithstanding the hundreds of thousands of protesters against his presidency that filled Washington D.C. and other major cities around the country on Saturday.

Trump’s press secretary Sean Spicer stated on Saturday that “This was the largest audience to ever witness an inauguration — period — both in person and around the globe.” Spicer went on to assail the media’s “attempts to lessen the enthusiasm for the inauguration” as “shameful and wrong.” The Washington Post easily debunked the claims with facts and photos. 

In Trump’s CIA speech Saturday, he obsessed further about his inauguration crowds, stating: “We had a massive field of people. You saw that. Packed. I get up this morning, I turn on one of the networks, and they show an empty field. I’m like, wait a minute. I made a speech. I looked out, the field was, it looked like a million, million and a half people. They showed a field where there were practically nobody standing there.”

In Trump’s first White House interview with ABC News, he obsessed further: “I would have won the popular vote if I were campaigning for the popular vote,” adding that “We had the biggest audience in the history of inaugural speeches.”

Tyler Cowen’s Bloomberg column hypothesizes that Trump’s lies “represent a belief that a lot can be pushed through fairly quickly, bundled with some obfuscation of the truth, and that long-term credibility does not need to be maintained.” We think there’s a far more dangerous motive at work here.

What appears to be underpinning Trump’s fixation on brainwashing the press not to believe their lying eyes about his crowds and Saturday’s protest marches against him around the country, is his plan for elevating the concept of a “unitary executive” to rule the country by executive actions like executive orders and memorandums – ignoring the will of the American people and effectively usurping the role of the legislative branch of government.

On April 30, 2006 Charlie Savage of the Boston Globe wrote an article that would win him a 2007 Pulitzer on George W. Bush’s use of signing statements. The article opened with the following shocker: “President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.”

Savage also noted the following:

“…with the disclosure of Bush’s domestic spying program, in which he ignored a law requiring warrants to tape the phones of Americans, many legal specialists say Bush is hardly reluctant to bypass laws he believes he has the constitutional authority to override.

“Far more than any predecessor, Bush has been aggressive about declaring his right to ignore vast swaths of laws – many of which he says infringe on power he believes the Constitution assigns to him alone as the head of the executive branch or the commander in chief of the military.

“Many legal scholars say they believe that Bush’s theory about his own powers goes too far and that he is seizing for himself some of the law-making role of Congress and the Constitution-interpreting role of the courts.”

The article set off a firestorm of criticism of Bush’s practices and led to the Senate Judiciary Committee holding a hearing on “Presidential Signing Statements” on June 27, 2006. At the hearing, Ranking Member Patrick Leahy had this to say:

“We are at a pivotal moment in our Nation’s history, where Americans are faced with a President who makes sweeping claims for almost unchecked executive power. One of the most troubling aspects of such claims is the President’s unprecedented use of signing statements. Historically, these statements have served as public announcements containing comments from the President on the enactment of laws. But this Administration has taken what was otherwise a press release and transformed it into a proclamation stating which parts of the law the President will follow and which parts he will simply ignore.”

We are just six days into the Trump administration and, according to its own web site, it has issued four executive orders and eight presidential memorandums covering a broad range of critical issues.

In 2014, the Congressional Research Service issued a 10-page report on the legality of executive orders, presidential memoranda, and proclamations. The report notes the following:

“Presidents’ broad usage of executive orders to effectuate policy goals has led some Members of Congress and various legal commentators to suggest that many such orders constitute unilateral executive lawmaking that impacts the interests of private citizens and encroaches upon congressional power. The Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer [1952] established the framework for analyzing whether the President’s issuance of an executive order is a valid presidential action. As discussed below, the framework established by Justice Robert H. Jackson in his concurring opinion has become more influential than the majority opinion authored by Justice Hugo Black, and has since been employed by the courts to analyze the validity of controversial presidential actions.”

Justice Jackson, in his concurring opinion wrote:

“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

Increasingly, it feels that the United States has entered uncharted waters with President Donald Trump.

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