Seriously: Can He Do That?

June 2, 2020

That’s a question I’ve been asked a lot over the past three and a half years, and never more often than the last 12 hours or so. And it’s an understandable question—we’re a constitutional republic. There are rules and they are written down. All we need to do is check the rules and see if things are OK.

But it’s not that simple. It’s never been that simple and it is getting more complicated by the day. Even within the legal framework there are complicated and difficult questions, and people can, in good faith, hold differing opinions of the meaning of the Constitution and the limits and restrictions it imposes in those areas. Other than the Third Amendment, which is pretty facially obvious, the Bill of Rights is not a list of self-executing, plain-and-clear guarantees.

When we take the First Amendment, that bedrock of our democracy, even the right to free speech is not absolute. Oliver Wendell Holmes’ oft cited “shouting ‘fire’ in a crowded theater” is not protected speech. This is widely accepted as necessary and even obvious, though few know to what Holmes’ was referring. In the case Shenck v. United States, 249 U.S. 47 (1919), the Supreme Court upheld the conviction of a man for distributing leaflets opposing the draft, encouraging men to resist being compelled to join the Army and being sent to Europe to fight in the trenches of the Great War.

That restriction on the First Amendment, which has become a common part of our legal and general parlance, was thereby based on a restriction that would now be seen as abhorrent and unacceptable. Indeed, 50 years later in Brandenburg v. Ohio, 395 U.S. 444 (1969), its key holding was overturned by the Court.

Our court system is often faced with challenges to constitutional provisions. Sometimes these challenges are caused by genuine, complex questions. As society changes, new situations arise. The growth of the internet and the explosion of citizen journalism has clear implications for the freedom of the press; the emergence of telephones, text messaging, and email raises questions regarding the privacy of communications guaranteed in a time when government surveillance meant steaming open letters or standing outside the window of a bar. Do the same freedoms written regarding muzzle-loading muskets apply to fully automatic .50 caliber machine guns? Such questions are answered by the courts, and we accept this as a necessary part of the constitutional system.

This requires a neutral, independent court system to work. Losing is one of the risks of legal action. But if the system is seen as blatantly misinterpreting the Constitution for the benefit of one viewpoint, time after time, then the system loses its legitimacy. If the answer to the question of “can he do that?” isn’t based on a reading of the Constitution and a reasoned weighing of the facts of the situation, then our consent to be governed by the courts erodes. When the people are denied even the chance of justice through the courts, they will seek it elsewhere.

In the Dred Scott Case, legitimizing slavery and white supremacy; later in Plessy v. Ferguson, 163 U.S. 537 (1896), where “separate but equal” and segregation was declared the law of the land; and in Korematsu v. United States, 323 U.S. 214 (1944), approving the internment of Japanese Americans in concentration camps, the Court took the path of political expediency over the clear result required by justice and the Constitution.

Currently the religion clauses of the First Amendment can often be seen as pulling in different directions. Conflict between the Free Exercise Clause and the Establishment Clause provides the basis for most of the legal battles over religion and government involvement currently occurring. We at CFI believe the courts and the government have wildly moved the pendulum in the direction of a bastardized and corrupted interpretation of religious freedom, providing government funding for religious groups to discriminate against those their religion deems unclean. The blatant preference for religion as seen in decisions such as Hobby Lobby cannot be seen as rooted in any legitimate interpretation of the Constitution, but instead represents a political decision by the Supreme Court.

So can he do it? Can he, like yesterday afternoon, set the military and police on indisputably peaceful protestors, firing tear gas and concussion grenades at them, for the purpose of clearing a path to enable him to stand outside a church holding a Bible? Is that “allowed” under our rules?

First, there’s little legal precedent to draw on regarding the Insurrection Act of 1807 as evoked yesterday. It’s possible that legitimate legal differences exist as in the power of the federal government to deploy troops to the states to quell riots, with or without the governors’ consents. That is one way in which he could “do it.” I don’t know the answer there. It is also far too possible that our Supreme Court, as has been its wont with cases seeking to reign in this administration’s excesses, may simply ignore the law and decide, yes, he can do it.

But there’s a third way in which he can do it. A way which no one likes to talk about, but one which is at the very center of our constitutional republic. The law rules, in the end, by consent. The Supreme Court has no way of enforcing its decisions if the elected branches decide to ignore it. When the Court in Worcester v. Georgia, 31 U.S. 515 (1832) ruled that states could not impose regulations on Native American Land, President Andrew Jackson (our current president’s favorite, let’s remember) refused to enforce it. An apocryphal story has Jackson saying “John Marshall has made his decision; now let him enforce it!” Cherokee removal continued. The decision became a dead letter.

So when you ask if he can do this, remember that there are three ways he can. First, the law may actually allow it. Second, this current Supreme Court may simply rule that he can. But third, and I’m no longer willing to dismiss this possibility as fanciful, the current administration may simply refuse to acknowledge a negative ruling from the Court. With the legislature deadlocked as the impeachment proceedings shown, if that happens, I don’t know what we can do.