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The Outlandish and the Lawless Trump’s Flagrant Serial Violations of the “Take Care”
Clause
Conforming to the
blueprint of Project 2025, Donald Trump has issued a dizzying and violent
series of executive orders that have uprooted the lives of executive branch
employees and others around the world. It’s clear that the
volume and pace of these actions are part of the strategy. Some have provoked
outrage that faded and gave way to dumbfoundedness at the next dislocating
move. Others have virtually eluded public focus in the roaring rapids of the
entire package. They all share a flat
disregard for constitutional constraints. Those of us who have
tried to focus on the legal infirmities of individual explosions in the
cannonade have pointed out particular arguments for combating these measures. For one, the
administration’s frontal assault on birthright citizenship appears
irreconcilable with constitutional text, particularly the first clause of the
14th Amendment, which states: “All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside.” More on that below,
but it certainly looks as if that text, part of the highest law of the
country, defeats Trump’s mean-spirited effort to punish the children of
undocumented immigrants. But individual
pushback against particular outrages overlooks the categorical dereliction
that extends to so many of Trump’s measures. We’ve heard a fair bit
during this dark stretch about the theory of the unitary executive, the core
of which is the idea that the president, unique in the constitutional scheme,
is the repository of all the power granted in Article II. He or she commands
an immense staff to help in the execution, but it is the person of the
president in whom the executive power resides. That’s in contrast to the
legislative and judicial powers, divided among hundreds, if not thousands, of
separate government employees. But what proponents of
the unitary executive theory don’t seem to talk as much about is the core
constitutional command that the unitary executive is charged with upholding. It’s straightforward:
The president shall take care that the laws be faithfully executed. We learned this basic
structure in third grade, though one doubts that Trump was paying attention.
Congress passes the laws; the president executes the laws; the judiciary
interprets the laws. Trump’s extended
series of military maneuvers constitutes an extraordinary abandonment of his
central constitutional responsibility. In fact, that seems to be the precise
objective of the president, as well as his henchmen—beginning with the
mini-me figure of Elon Musk, who is calling so many shots and whose official
status remains a legal mystery. It’s important to
underscore how unprecedented and wholesale a departure from his Take Care
responsibilities Trump’s young tenure has been—particularly his efforts to
push the legal limits of established executive power. While testing these
limits is relatively routine in many administrations, Trump’s actions are on
another level entirely. For example, successive
Republican administrations, beginning with Reagan, urged the Supreme Court to
overturn Roe v. Wade. They were necessarily pushing against the
then-prevailing interpretation of the Constitution. But it was accepted that
good-faith arguments in support of strongly held policy positions (here, the
anti-choice tenets of Reagan and every Republican president to follow
him—with the possible exception of Trump, who has been all over the map) were
legitimate. The appropriate
question in judging the legitimacy of those efforts—the analysis that a
president should be making in deciding whether to push a change before the
Court—is whether there is a good-faith basis for the position. In the case of Roe v. Wade, for example, successive solicitors general presented
arguments to the Court that fell within the bounds of accepted governmental
advocacy, as with Reagan official Charles Fried’s argument that the Court
should “remove one thread” of its substantive due process jurisprudence. The effort, of course,
tended to frighten and infuriate pro-choice Americans. But the short solution
was to vote Republicans out of office—not, say, to impeach the president for
a basic failure to Take Care. When Solicitor
General-designate John Sauer stands up in court in support of the
administration’s birthright citizenship position, he will have the unenviable
task of focusing judges on the 14th Amendment clause that reads: “All persons
born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States.” The argument is that
somehow children of undocumented immigrants are not subject to the
jurisdiction—the power—of the federal government, as, for example, certain
diplomats are. It is a really lousy argument, self-evidently wrong. If the
position held water, children of undocumented immigrants would have no
responsibility to pay taxes, obtain driver’s licenses, or conform to the
dictates of criminal law. But the immediate
point is that while the argument is far-fetched and outlandish, it is at
least arguably within the outer realm of the sorts of actions presidents take
in support of policy positions they believe they were elected to pursue. I say “arguably” because
there’s no need to run down whether it falls outside even loose boundaries in
order to contrast it with other actions by Trump that are flagrantly lawless
and in direct conflict with his Take Care responsibilities. For instance,
mini-me’s recent campaign to shutter the United States Agency for
International Development (USAID) is precisely the opposite of taking care.
As the Congressional Research Service has explained in a recent paper, the
president has no power to shut down an agency created by Congress, which in
1998 passed a statute recognizing USAID. Any effort to present
the demolition as a mere adjustment to the agency’s basic responsibilities is
rebutted by mini-me himself. Musk called the agency, which has now been
literally shuttered, a “radical-left political psy op” and a “criminal
organization” that “needs to die.” And he was the
self-appointed one to kill it. The policy of killing the agency is
mean-spirited and shortsighted. But for current purposes, the much more
important point is that it’s a simple punch in the nose to Congress. Rather
than proffer any legal basis for taking a chainsaw to the agency, Trump and
Musk have simply violated the law and dared Congress—or anyone—to do
something about it. And as with many of
Trump’s affronts to the rule of law, his insubordination will be rewarded, at
least in the short term, because it’s time-consuming and complicated to
vindicate the rule of law in court. There are a few
different ways to categorize the overall carpet bombing we’ve witnessed
during these initial weeks in office. For many, the most salient lens is the
massive damage inflicted on the country and people’s lives. But from another
perspective, the most important measure is the degree of departure from the
core task that the Constitution assigns the president. The day will and
should come when a different Congress wakes up and undoes many of Trump’s
most damaging actions. But some outrages tear at the constitutional fabric in
ways that may prove difficult to stitch up, even after Trump leaves the
scene. Even as we fight back against the immediate consequences of his
hideous rule, it’s critical to fight—to the point of exhaustion and
beyond—against assaults on the principles of constitutional democracy.
History teaches us that such assaults can, in fact, reach a point of no
return. It’s that longer-range
battle that may well determine whether we live up to the blessings and
challenges encapsulated in Franklin’s immortal phrase: “[a] republic, if you
can keep it.” Talk to you later. |
