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A Letter to the Incoming President

January 19, 2017

Dear Mr. Trump:

 

This week you will take the oath of office as President of the United States. It is one of the great moments in our constitutional democracy – the peaceful transition of power to a freely elected new chief executive. This does not happen in every country. But it’s happened in ours every four years for the past almost 230. I don’t take that for granted. I hope you don’t either.

 

The rules and procedures that governed your election and inauguration are spelled out in that wonderful document called the Constitution of the United States. I don’t know if you’ve read it or not. I hope you have, or at least read parts of it. If you’d like to read it, I can loan you one of my two pocket copies. I’ll give you what I call my “spare.” The copy I keep by my desk was given to me by Warren Burger, who was a former Chief Justice of the United States. Chief Justice Burger was a huge proponent of the Constitution and spent much of his time near the end of his tenure organizing a celebration of its bicentennial. A large part of that celebration consisted of educational programs about the Constitution, which was one of the reasons I started writing books for children about it. Chief Justice Burger used to hand out pocket Constitutions to people the way John D. Rockefeller used to hand out shiny new dimes. In my mind, the Constitution is way more valuable.

 

The current Chief Justice will be at your inauguration, Chief Justice John Roberts. He will be the guy in the black robe on the other side of the Bible from you, administering your oath of office. That’s one of the ceremonial jobs that goes with being Chief Justice. But as Chief Justice of the United States he is also the head of the Judicial Branch of the U.S. government, which is one of the two other coequal branches of the U.S. government along with the Executive Branch, which you will head as president. You seem to be pretty familiar with the courts, so I think you understand a lot of what the Judicial Branch does.

 

But they also have a function under our Constitutional system that you may not be familiar with. That function is called “judicial review,” which means that they have the authority to review laws that you and the Congress make and decide whether those laws are legal or not under the Constitution. So, for example, if you and Congress decide to adopt a law that requires registering all Muslims, then the courts can decide whether or not that law complies with the Constitution, and if they decide that it doesn’t, well then the law can’t be applied. Now, note that the Supreme Court can’t decide on its own whether or not to review a law – someone has to ask them first by bringing a case to court – but if they get a case challenging a law that you and Congress make, then the Supreme Court, and not you, has the final say on whether or not that law is legal under the Constitution.

 

Speaking of Congress, they will be at your inauguration, too. In fact, you will be taking the Oath of Office on their front porch – in front of the U.S. Capitol, which is where Congress meets. As you probably know, Congress’s job under the Constitution is to make laws. I know that you have talked a lot about the laws you want to make, like a new health care law. But you’re not going to be able to do that on your own. Congress is going to have to do it. The good news for you is that most of the members of Congress are also members of your political party, so they will probably support a lot of what you want to do. But many are not, and the way the rules of Congress work (and Congress makes their own rules, according to the Constitution), some of the laws you want to make will require you to get at least some support in Congress from members of the other party. And on some of the more controversial issues, not even the members of your party are all united on what laws they want to make. So no matter how much you want to make a certain law, you cannot do it on your own. The Constitution doesn’t give you the final authority to make a law. It gives that power to the Congress.

 

And that’s the point: The Constitution gives you a lot of power – especially power over foreign affairs and as commander in chief of the military--but not as much lawmaking power as you might think it does. The Constitution divides the government’s lawmaking authority by using something that we call “separation of powers” by giving lawmaking power to the Congress and judicial review to the courts, and giving the President the power to carry out the laws that Congress makes. It also gives each branch some authority over the other branches, which we call “checks and balances,” to keep any one branch from becoming substantially more powerful than the others.

 

So, for example, Congress makes the laws, but the laws don’t go into effect unless the President signs them. The courts can decide that a law isn’t constitutional, but the President decides, with the advice and consent of the Congress, who to appoint as judges when there are vacancies on the courts. After federal judges are appointed, the Constitution allows them to serve for life, so they can make sometimes unpopular decisions without worrying about losing their jobs. And Congress decides how much money the other branches get to spend each year and tells them the purposes for which they can spend it.

 

It’s a delicately balanced system, one that requires you and the Congress to work together to make and enforce laws while still satisfying the legal requirements of the Constitution as interpreted by the courts. It’s one that requires compromise and consensus – two things that have been missing the past several years—as well as commitment to the rule of law. Many people think the system is broken. I don’t, I just think the people within the system have forgotten that they need to compromise to make it work.

 

When you take that oath of office on the doorstep of Congress, administered by the Chief Justice of the United States, you will stand at the intersection of all three branches of government performing their constitutional duties to ensure the peaceful and orderly continuance of our republic. It is a great symbolic moment in which each branch brings its piece of the puzzle and puts them together to launch a new era in the timeline of American history. The question then is what happens next: Does each branch repair to its respective corner of Washington and act in isolation to undo the work of each other, or is there true cooperation, mutual respect, and understanding in the common interest?

 

Only time will tell, Mr. Trump. But the next move is up to you. And the people are watching.

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