Jon D. Michaels: Secondary systems of separating, checking power dusted off
Trump presidency has shaken our constitutional reality to its very core
Editor’s Note: Jon D. Michaels is a professor of law at the UCLA School of Law, where he teaches and writes about administrative law, national security law, privatization, and the separation of powers. His book, “Constitutional Coup: Privatization’s Threat to the American Republic,” is forthcoming from Harvard University Press. Unless otherwise noted below, facts reflect research for his scholarly projects. The views expressed in this commentary are his own.
In the immediate aftermath of President Donald Trump’s surprising election, I received a number of calls and emails from students and former students, all Democrats to be sure. Should they accept jobs in the Justice Department? Should they remain in their posts in the Environmental Protection Agency? My answer was an unwavering yes. One serves regardless of the president’s politics.
In a world in which the work of the federal government continues apace, I stand by my advice.
But increasingly, that world no longer reflects our reality. In the first 12 days of the Trump presidency, our constitutional reality has been shaken to its very core. We now have a right-wing blogger turned chief political strategist serving as a principal on the all-important National Security Council. (His elevation was coupled with the corresponding downgrading of the roles played by the chairman of the Joint Chiefs of Staff and the director of national intelligence.)
We have gag orders on federal employees. We have the go-ahead to commence construction on the so-called wall. We have smarmy salesman-like promises to cut two rules for every one new regulation we enact, and, of course, we have a legally doubtful immigration and refugee policy composed with almost no input from the Departments of State, Defense, Justice, and Homeland Security.
Sadly, I could go on … and on. Those of us frustrated by the new administration’s efforts may reflexively turn to the classic separation of powers, expecting Congress to work its Madisonian magic of checks and balances. But with both houses of Congress controlled by President Trump’s party – and with many appeals to the courts, particularly those relating to the President’s myriad financial conflicts, being non-justiciable – we better start looking elsewhere.
Fortunately, we don’t have to look too far or long. Already we are seeing the cobwebs dusted off of our secondary systems of separating and checking power that are, in many ways, independent forces in American law and politics: state and local governments, federal bureaucracy itself, and most crucially, civil society.
States and local governments are preparing to intensify their defiance of the Trump administration. California is redoubling its efforts to cut carbon emissions, perhaps dragging the rest of the country to follow suit. After all, automakers obligated to retool their fleets to sell in the large and lucrative California market will end up selling those cleaner cars nationwide. Localities, for their part, are further fortifying themselves as “sanctuary cities,” providing affirmative services to undocumented persons, setting up legal defense funds for their protection, and even decriminalizing certain petty transgressions to stifle presidential efforts to deport those with the barest of criminal records.
Meanwhile, for over 100 years, the hallmark of our federal civil service has been its political independence from those in the White House. We now see federal bureaucrats engaging in creative and persuasive acts of what we may call civil (service) disobedience. Specifically:
- After the White House placed gag orders on officials in the EPA and the Departments of Agriculture, Interior, Health and Human Services, the National Park Service stepped into the vacuum, tweeting perhaps inconvenient facts about the reality of climate change and drawing similarly inconvenient analogies between Japanese-American internment and the administration’s new immigration policy. Soon, those accounts were likewise disabled. But in an elaborate game of whack-a-mole, dozens of “rogue twitter” accounts loosely affiliated with the EPA, NASA, the Forest Service, and other agencies have popped up, attracting millions of followers and spawning countless copycats, all of whom are quite literally speaking truth to power.
- Foreign Service officers in the State Department are busily circulating a formal dissent cable opposing the immigration ban on public policy grounds.The formal dissent cable is a venerable, though rarely resorted to, means of expressing rank-and-file opposition. At last reporting, the cable has over 1,000 signatures and has taken on a life and energy of its own. The challenge has not been in getting signatures but rather in recording all the signatures from the many, many officials stationed around the world who want their names added.
- Acting Attorney General Sally Yates directed Justice Department lawyers not to defend the President’s immigration order before the federal courts, a staggering admission that the order is beyond the legal pale. Though summarily (and lawfully) fired, Yates made clear her principled objection to a dangerous and, in her considered judgment, legally unsupportable directive.
And let’s not forget that civil society is yet a third independent force in American law and politics. Despite bipartisan railing against “big government,” our constitutional order has always been – and remains – one with a large, vibrant, and powerful private sector. One of the virtues of a strong and independent civil society is its ability to challenge government policy, to voice opposing positions, and to peaceably assemble and protest. Already, one remarkable display of economic sacrifice and communal solidarity took the form of an impromptu taxi strike at New York’s JFK airport, where many travelers covered by the President’s immigration order were detained. At roughly the same time, Starbucks pledged it would hire 10,000 refugees over the next five years. Here we have civil society, struggling cabbies and wealthy corporations alike, mounting formidable challenges to the administration’s vision of America.
To be clear, there are problems with mobilizing these secondary mechanisms of restraint on federal executive power. We need to be careful what we wish for, or even condone. Why should California effectively get to dictate national environmental policy? Why should we tolerate bureaucratic insubordination? And why shouldn’t cabbies and coffee makers mind their own business, and do their jobs as common carriers and corporate fiduciaries, respectively?
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Indeed, under periods of normal constitutional politics, we ought to take a dimmer view of these mobilizations. Presidential administrations, even ones we vehemently disagree with, should be allowed to implement their preferred policies. Critiques from those within and outside government should be vigorous but constructive, of the loyal opposition variety. And, by and large, throughout our history, they largely have been. But we are, many fear, rapidly deviating from the normal. In under two weeks, we’ve seen a blatant disregard for the rule of law; an almost gleeful hostility to a free press; a willingness to suppress scientific truths; an eagerness to politicize our national security; and an indifference to the constitutional imperatives and popular calls for presidential divestment.
Such circumstances may well necessitate calling forth our secondary systems of separating and checking – treating them as part of a constitutional fail-safe to be used only in exceptionally rare, “in case of emergency, break glass,” moments.