Note: This blog was published in the Sunday, Feb. 12 edition of the Baltimore Sun.
While I am as concerned as anyone about President Trump's actions last week, I can’t help but think that what the country needs right now is a basic civics lesson. Yes, the first shoe is falling. But in our constitutional system of government, two more have to drop before a presidential action can have the kind of impact people are fearing.
Let’s start at the beginning – 1787. The Constitution created three separate, coequal branches of government and gave each branch specific powers. Remember the shorthand we all learned in civics classes (they still teach civics, right?): The legislative branch (Congress) makes the laws. The executive branch (President) carries out the laws. The judicial branch (Supreme Court and lower courts) interprets the laws.
What we are seeing now are orders that the president as head of the executive branch is directing to the executive departments and agencies who work under him telling them what to do. They reflect changes in how the executive branch departments and agencies are supposed to "carry out" their jobs. But, and here’s the important thing, they do not override existing laws. If an executive order from Trump is in conflict with the law or the Constitution, the order is invalid.
Some of these orders -- like the wall -- will need funding in order to be implemented. Homeland Security probably has money somewhere in its FY 17 budget to fund initial studies and contracts to begin planning and perhaps even constructing the wall this year, but Congress will have to authorize more to keep the project going in FY 18, 19, etc. Plus, there will no doubt be legal challenges to the wall brought to court on environmental and other grounds. So effectively Trump has ordered agencies in the executive branch to begin doing what they need to do to plan and begin building the wall, but Congress and the courts will need to take actions at some point to really make it happen.
Same thing with the orders limiting communications of government agencies. Trump, as head of the executive branch, is telling the agencies that work under him not to have websites and/or restricting what they put on their websites. But he can't stop employees from going on social media on their personal time. He can't control what they say in forums that are not related to their government responsibilities. If the Trump Administration tries to take job actions against employees who speak, there are civil service and other legal protections in effect, depending on the status of the employees.
Moreover, news media organizations are likely to bring lawsuits about limiting information produced by government agencies. Possible beneficiaries of government produced information – scientists, academics, researchers, and libraries, for example -- are also likely to bring lawsuits. EPA and other government technical organizations produce valuable information funded by the taxpayers. There are a number of laws that require taxpayer-funded information (other than classified information) to be made available, so there will certainly be legal challenges. And courts, no matter who is in office or who appointed the judges, have a long history of preserving access to government information not only on statutory grounds but also to avoid prior restraints on the press’s ability to gather information.
As to Trump’s orders restricting immigration on travelers from Muslim countries – the courts are already starting to act and the orders aren’t standing. This isn’t to say that he does not have some authority under the Constitution to impose restrictions on immigration; but his first orders sweep too broadly.
Separation of powers, checks and balances, federalism were all designed to prevent a change in one branch of government from dramatically changing the direction of the country, especially a change in the executive. The Founders knew all about despots, so they built in mechanisms to prevent one from getting too much power and from making too many changes too quickly. We often complain about how long it takes change to happen in government, but I think we can see now why the Founders wanted to make the wheels of government grind slowly.
I think the Trump administration is going to test the limits of executive power as well as the limits of the Constitution. But I think it, and we, will survive if we just let the process work.