Op-Ed: The Founders anticipated Trump. We can handle this.
A few weeks ago I told my daughter’s second grade class that our Constitution anticipates bad guys. As I spoke, I projected pictures of some familiar evildoers—Aladdin’s Jafar, the Wicked Witch and Cinderella’s stepmother. But these kids aren’t dumb. One grew impatient, demanding to know, “Where’s Donald Trump?”
Truth be told, that’s why I was asked to come in. My daughter’s class looks like central casting for a Benetton commercial. I don’t even know if Benetton still is around. But at least in our corner of America, the iconic 1980s ad campaign has come alive. The Muslim kids were worried about being demonized. The Latino kids were worried about walls, deportation and loyalty tests.
The students are nervous, the teachers said. You study constitutional law — please talk to them.
My message to them was upbeat, circumspect and perhaps a little dismissive. Like everyone else in mid-October, I was reading the polls and thinking this crazy campaign would soon be over, an odd footnote, a perennial punchline. So I spent most of the session discussing the beauty of democracy, turning only at the end to say: And even if everything goes wrong…
James Madison, Alexander Hamilton and the rest expected the threat of tyranny.
What I told them is what I believe. Our Framers anticipated the rise of Trump. James Madison, Alexander Hamilton and the rest expected the threat of tyranny. Like nervous parents, they wanted us to be well protected, so they designed a system of checks and balances. For much of our history, those extra protections have seemed, at best, quaint and, at worst, restricting — like bulky padding our dads and moms made us wear before playing street hockey.
Before turning to Tuesday’s results, let’s pause there for a second — and congratulate ourselves. We’ve exceeded all expectations. Over the course of 230 years, we can count the number of presidential knaves on one hand. We’ve had plenty of mediocrity but remarkably little venality. Of course, we can’t take all the credit: The very existence of those safeguards may have dissuaded would-be tyrants, keeping them in line or altogether discouraging them from seeking office. The padding, so to speak, was useful, even if it wasn’t tested.
Now we find ourselves at a moment when that hockey game may get very rough, very fast. President-elect Trump ran against Washington, against the normally civil hockey game. He also ran, hard, against many of our players, notably women and people of color. Today we ought to thank the Framers for all that padding — for the separation of powers.
First, remember the judiciary. Those were the words I said to my daughter when she, reluctantly, went to bed Tuesday night. I told her that Aladdin, Dorothy and Cinderella didn’t have judges. There was no habeas corpus in Oz. If there had been, no one would have had to resort to magic. But we do, and the judges can prevent a good deal of abuse, certainly dispelling any fears of Trump unilaterally jailing anyone, let alone Hillary Clinton.
Second, remember Congress. Many progressives have spent the past eight years railing against an obstructionist Congress. Those same progressives are, no doubt, now looking to Democratic Minority Leader Chuck Schumer, hoping he’s learned a few tricks from Republican Majority Leader Mitch McConnell.
Congress has a legitimate role to play as a strong, defiant counterweight. Again, think of bulky hockey pads. Congress holds the president back from making amazing moves, but they also protect us against injury. That’s the trade-off we make in the political arena — low scoring games and few injuries.
Third, remember the civil service. As President Obama deftly demonstrated, entrepreneurial presidents can work around an obstructionist Congress, directing administrative agencies to carry out responsibilities ordinarily entrusted to the legislature. But even here we are well protected: We have a system of administrative separation of powers that ensures the new president and his cadre of political appointees will have to work closely with hundreds of thousands of professional, politically insulated career government officials.
Unlike agency heads, these career officials do not serve at the pleasure of the president. Instead, they are legally and professionally acculturated to resist, challenge or reshape policies they find unreasonable, inconsistent with existing law or downright unconstitutional.
Trump and his team know this. That’s precisely why they’ve already announced they’re seeking to undo the civil service tenure laws that empower this pivotal, if often invisible, counterweight. Congress and the courts should take note of that threat, and take it seriously.
As a citizen and as a dad, I’m worried. I’m worried about a reversal of all the social and economic progress we’ve made; about the hateful and vitriolic statements that cannot be forgotten or explained away; and about the deep ruptures and divisions that seem to imperil our political community. As a lawyer, however, I’m more at ease. The Trump presidency won’t be an extension of the Miss Universe pageant or “The Apprentice.” He can’t fire Supreme Court Justice Sonia Sotomayor, Sen. Elizabeth Warren or the rank-and-file working for the EPA or the State Department. And mid-term elections are practically around the corner. Trump is joining a carefully officiated game already in progress, and our hockey pads are already on.
Jon Michaels is a professor of law at UCLA. He is the author of the forthcoming book “Separation of Powers All the Way Forward.”
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