By Robert Kimball Shinkoskey
Photos: YouTube Screenshots\Wikimedia Commons
President Trump is doing a great deal of damage to our 250-year-long tradition of rule of law. Provisions of the Constitutional law he is trashing today were once held sacred by presidents.
One of Trump’s early anti-constitutional shenanigans was his attempted manipulation of the Article II, Section 1 electoral college provision. A dispute over 19 electoral college votes in the election of Rutherford B. Hayes in 1876 was settled by a bipartisan commission of Congress rather than by the likes of Trump’s violent attempt to force recognition of alternate slates of electors in 2020.
Article II, Section 2 says the Senate, and thus the people, must give its consent to any treaty negotiated by the executive branch. President Grant negotiated a treaty of annexation with Santo Domingo, but dropped the whole project when Congress failed to approve the treaty. Andrew Jackson negotiated a secret treaty with Turkey to help rebuild its navy, but Congress rejected it. Trump has abrogated treaties like the Climate Accords and the World Health Organization without Senate concurrence.
America’s intention in writing the law-making clause of Article I Section 8, giving Congress the power to “make all laws,” was to keep autocrats from running the country. George Washington and presidents long after him understood “executive orders” to be limited to administrative matters pertaining to housekeeping details—things like finding housing for agencies within the executive branch. Today Trump makes the great bulk of national laws through these constitutionally illegal E.O. decrees, while Congress twiddles its thumbs.
Presidents before Richard Nixon took care to spend Article I, Section 9 Congressional appropriations where and how they were legally supposed to be spent. However, Trump has far surpassed Nixon’s usurpations. He treats the Congressional budget like his own personal checking account, moving money around for things like a border wall and unilaterally rescinding huge portions of the Congressional budget so he can finance tax cuts largely benefiting the wealthy.
Previous presidents understood that the revenue power to raise income taxes and tariff taxes was in Congress’ hands as Article I, Section 8 clearly states. Congress used to do the drafting of tax bills, but today Trump handles all that. Congress used to draft, debate, and pass tariff legislation, but Trump has taken over that power as well.
Presidential pardons specified in Article II, Section 2 were intended by the Founders to be used to correct injustices, not to perpetrate them. For example, Joe Biden used them to pardon those convicted of simple possession of marijuana. Today Trump uses them to pardon friends, political loyalists, donors to his campaign, evil genius white collar criminals, etc.
The chief exec has also given himself the power to ignore the emoluments anti-corruption clause of the Constitution in Article I, Section 9. Earlier federal officials were scrupulous about observing this law. For example, Andrew Jackson sought permission from Congress to keep a gold medal presented by Simon Bolivar. Congress refused to grant consent, and so Jackson deposited the medal with the Department of State. Today Trump accepts a half a billion-dollar airplane as a gift without any hesitation or permission from anyone.
The prohibition on Titles of Nobility in Article I, Section 9 means government officials are not supposed to allow the people to bestow personal staff and titles to land on them. On the contrary, the President is supposed to serve and enrich the general welfare of the people instead. A good example is President Grover Cleveland, who answered the White House phone and the front door of the White House when people came to talk to him. Trump has said he wants personal title to an emptied-out Gaza strip so he can develop it into a Middle East Riviera.
Congress in a democracy has the exclusive Article I, Section 8 power to declare wars, but in an autocracy like ours today, the President has taken over this tremendous power to hurt nations and to help himself to personal glory. Trump throws out personal threats to nations as if the American armed forces were his own personal army and arranges a military parade to honor his majesty on his birthday. He has no intention of allowing Congress to exercise its constitutional power to declare wars, which presidents allowed the Congress to do all the way through World War II.
Finally, the Article IV necessity for the federal government to “guarantee” a republican government in the states was upheld when a previous president, Dwight D. Eisenhower, sent armed forces to facilitate desegregation of schools in Little Rock, Arkansas in 1957. Today, Trump disrupts state “republicanism” by organizing alternate slates of electoral college representatives, pushing for an end to non-partisan public school education there, and usurping the Governor of California’s right to deploy National Guard troops in the state.
Robert Kimball Shinkoskey is the author of The American Kings: Growth in Presidential Power from George Washington to Barack Obama (2014)
