The President’s Dangerous Disregard for the Constitution
The Presidential Oath of Office is short:
I do solemly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
This oath is mandated in the Constitution, itself (Article II, Section 1, Clause 8). Forty-four men have sworn to protect and defend the Constitution. They’ve had different political beliefs. They’ve debated and argued, even adversarially. They’ve interpreted portions of the document differently. Yet their loyalty to The Constitution remained a constant.
Donald J. Trump, however, shows a pattern of blatantly disregarding the Constitution. This is very different than having a strong opinion on the interpretation of an amendment. The Constitution was built to be interpreted and debated. But not disregarded. More troubling, the President’s ambivalence toward various sections seems to be adopted and promoted by many of his followers.
Candidate Trump frequently demonstrated Constitutional illiteracy on the campaign trail. He spoke of shutting down mosques following the November 2015 terrorist attacks in Paris (contradicts the 1st Amendment). He advocated torture by saying of waterboarding, “I like it a lot. I don’t think it’s tough enough” (contradicts the 8th Amendment). He suggested a “total and complete shutdown of Muslims entering the U.S.” (contradicting the 14th Amendment). These have since been largely forgotten and written off as rallying his base during the election.
But since taking the oath to preserve and defend the Constitution of the United States, the President has failed to do so on numerous occasions.
Trump’s Disregard for Article III
The President has shown an exceptional tendency to attack the Judicial Branch of government when he disagrees with it. From referring to U.S. District Court Judge James Robart as “this so-called judge” to tweeting “we need NEW JUSTICES of the Supreme Court,” he attacks justices and their rulings in unprecedented ways. The danger is that the Judicial System and the laws it interprets are social constructs, existing only because the nation agrees they exist. But when the President relentlessly and vociferously questions the legitimacy of judges and their rulings, he is questioning the legitimacy of Article III.
He attacked the impartiality of U.S. District Judge Gonzalo Curiel who presided over a class action lawsuit against Trump University. He called Judge Curiel a “hater” and a “Mexican,” even though the judge was born in Indiana.
He called U.S. District Judge Jon S. Tigar’s ruling against Trump’s effort to bar asylum to immigrants a “disgrace.” He also called him an “Obama judge,” prompting Chief Justice John Roberts to tell the Associate Press, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. The independent judiciary is something we should all be thankful for.” The president then doubled down by tweeting, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country. It would be great if the 9th Circuit was indeed an ‘independent judiciary’.”
A partial list of the President’s twitter attacks on the Judicial System can be found here.
In February 2020 Attorney General William Barr said in an interview with ABC News, “I think it’s time to stop the tweeting about Department of Justice criminal cases.”
Calling the President’s comments into even starker contrast is the concession of Al Gore to George W. Bush in 2000 following a Supreme Court ruling. Ceding the Presidency, Gore said, “Let there be no doubt, while I strongly disagree with the court’s decision, I accept it. I accept the finality of this outcome.” This deference to the Supreme Court in such a hotly-contested case with national and historic ramifications was not exceptional. It is what Americans expected.
Trump’s Disregard for the 10th Amendment
Democrats and Republicans took issue with the President’s April 2020 assertation that he had total authority to dictate measures that would or would not be taken in states during the pandemic. He stated, “When somebody is the president of the United States, the authority is total. And that’s the way it’s got to be. It’s total.”
But the 10th Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, when not specifically noted by the Constitution, the default position of authorities lies with the states.
Trump’s Disregard for the 22nd Amendment
The President has needled the 22nd Amendment, which limits the number of times a person can be elected President. Though often dismissed as jests, his comments swing uncomfortably close to monarchy, and have come with unsettling regularity.
In March 2018, meeting Republican donors at his Mar-a-Lago estate, the President said this of Chinese President Xi Jinping, “He’s now president for life. President for life. No, he’s great. And look, he was able to do that. I think it’s great. Maybe we’ll have to give that a shot some day.”
At an April 2018 rally, he said, “Should we go back to 16 years? Should we do that? Congressman, can we do that?” When the press reported this, he both responded, “You know the last time I jokingly said that the papers start saying, ‘He’s got despotic tendencies. No, I’m not looking to do it. Unless you want to do it, that’s OK.”
In April 2019, he received a trophy for the support of the Wounded Warrior Project and said, “This will find a permanent place, at least for six years, in the Oval Office. Is that okay? I was going to joke, General, and say at least for 10 or 14 years, but we would cause bedlam if I said that, so we’ll say six.”
In June 2019, he tweeted, “At the end of 6 years, after America has been made GREAT again and I leave the beautiful White House (do you think the people would demand that I stay longer? KEEP AMERICA GREAT), both of these horrible papers will quickly go out of business & be forever gone!”
In February 2020, the President retweeted a video that suggested he could be running for President indefinitely.
While he may dismiss these as jokes, it is troubling that Trump 2024 t-shirts and bumper stickers are available. At best, this can only be interpreted as Constitutional illiteracy. At worst, it’s an open mockery of the document upon which America is founded.
Trump’s Disregard for the 1st Amendment
The President frequently refers to critical press as the “fake news,” a moniker quickly adopted by his supporters. But his other label, “enemy of the people” (which he has tweeted 49 times at present counting) dangerously undermines the Constitutional decree that Congress will make no law abridging the freedom of speech, or of the press. Intentional or not, the suggestion that the press is an enemy to be defeated lays groundwork for the government regulating it or nursing the belief among parts of the population that the press should be more tightly controlled. The complete devolution into state-run media like North Korea of Nazi Germany may be a phantom. But tolerating the mere notion that the American people might be better served by curtailing 1st Amendment rights is a step away from democracy.
In October 2018, the President tweeted, “CNN and others in the Fake News Business keep purposely and inaccurately reporting that I said the ‘Media is the Enemy of the People.’ Wrong! I said that the ‘Fake News (Media) is the Enemy of the People,’ a very big difference. when you give out false information — not good!” Yet, the President has publicly referred to every major national news source as “fake news,” including the traditionally conservative and Trump-friendly Fox News. If all unfavorable news is fake, then all news is the enemy of the people. The President has been too reckless is sowing his seeds of distrust. And too thoughtless in undermining the 1st Amendment.
Trump’s Disregard for Article I
Article I, Section 9, Paragraph 8 (the Emoluments Clause) has never received attention like it has under the current administration. The anti-corruption clause designed by the Founders as a bulwark against foreign influence states that no person holding office shall “accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
It’s important to note that the Emoluments Clause is more specific than simply saying a President can’t do personal business while in office. His 2019 attempt to host the G7 at his Mar-a-Lago resort was a clear violation, as he would be earning a profit from a foreign state and its leaders. When the plan was abandoned after much criticism, he grumbled at a Cabinet meeting, “you people with this phony emoluments clause.” For a President to refer to any part of the Constitution as “phony” must be a first.
Trump’s Disregard for Article II
Article 2, section 2 states that a President can make appointments. Congress can give power of appointment to someone other than the President. But the President is supposed to make the most important decisions, usually cabinet members and ambassadors.
Five months into his presidency, he tweeted, “Dems are taking forever to approve my people, including ambassadors. They are nothing but OBSTRUCTIONISTS! Want approvals.” The Constitutional issue with this statement is that the President has to get the ball rolling by nominating candidates. The Republican majority of Congress can only approve the appointments once they’ve been nominated. At the time of the tweet, there were 39 confirmed appointments, 63 formally nominated, and 442 positions with no nominee. This may not fray the fabric of the Constitution. But it does illustrate that the President either did not understand his responsibilities with respect to the appointments process or was using his inaction to be divisive.
Trump’s Disregard for Article II, Continued
In April 2020, the President threatened to formally adjourn Congress — something no President has done. His motivation was not secret. It was to cut Congress out of the approval process so the President could push dozens of executive and judicial nominees through without a Congressional vetting. In a press conference, the President said, “If [Congress doesn’t] act on getting these people approved — we need them anyway — but we especially need now because of the pandemic, we are going to do something…I prefer not to do but I should do and I will do if I have to…They’ve been warned, and they’re being warned right now…We’ll probably be challenged in court, and we’ll see who wins.”
The Constitution allows the President to “fill up all Vacancies that may happen during the Recess of the Senate” (Article II, Section 2). But it does not allow him to adjourn Congress to do so. The President may adjourn Congress, but only under limited and specific circumstances.
Both Republicans and Democrats saw the President’s threat as legally weak, and even Senate Majority Leader Mitch McConnell dismissed it as a real possibility. But the President’s suggestion showed more bluster than it did Constitutional literacy.
Praise Trump or condemn him. Call him a great president or one of the worst. Interpret his character however you please. But it’s indisputable that in multiple cases, the United States Constitution says one thing, and Donald Trump says another.
The Constitution is only as strong as the nation’s will to enforce it and abide by it. The Bill of Rights are not immutable laws of physics. They are ideals we adopt and agree to uphold. When we weaken our resolve to live by them, or to hold others accountable to them, we diminish the integrity of the Constitution.
Donald Trump has too often disregarded the United States Constitution for his actions to be brushed off, rationalized, or justified. His attitude toward this document shows either a paucity of understanding, or an abundance of indifference. In either case, it is a betrayal of his oath of office and an attack on the fabric of the Constitution itself. And that is dangerous territory.
UPDATE: December 3, 2022
With the former president having again declared his candidacy for reelection, it’s worth noting his most recent disregard for the Constitution. Today, on his Truth Social site, he called for “the termination of all rules, regulations, and articles, even those found in the Constitution.” (The story has been covered by Axios, Politico, CNN, The Hill, and elsewhere.)
Trump has drawn a line in the sand. He stands on one side and on the other is a document framed by our Founding Fathers that has prevailed for over 200 years.
