During the first Trump Administration, America learned a painful lesson about norms of behavior, versus actual laws governing behavior. The former are, or were, considered the informal rules of politics. Things like “don’t be a philanderer” and “you can’t be President and run a large, international business that produces hundreds of conflicts of interest.” That sort of thing just wasn’t done! The latter are, or were, formal legal restrictions binding the actions of politicians. Sorry Senator Menendez, but you cannot legally trade political favors for gold bullion. You go to jail for that.
Unless you’re pardoned for some strange reason.
This time, I believe America may learn a painful lesson about how the norms really protected the laws. That without those norms it isn’t so much of a leap to start subverting laws in clever ways. Because at the end of the day, laws are ink on paper. They have no power over us, except for the power we give them. And they can be easy to work around for those possessing the shamelessness.
Any president could’ve gone around shutting down federal investigations into allies or enemies to cajole or manipulate them into making policy concessions. That’s a perverse subversion of the legal and political process, but it’s technically legal. What stopped it happening is that this sort of thing just wasn’t done! The norms of behavior protected us from this, not the law. The law is that prosecutorial discretion is almost absolute.
But that’s small potatoes compared to the nightmare scenario. In anticipation of Donald Trump potentially winning a second term, Congress saw fit to pass legislation preventing a president from unilaterally pulling out of the North Atlantic Treaty Organization (NATO). Trump has flirted with this idea several times in the past, and even hinted he might not honor Article 5 of the treaty, the mutual defense clause. On paper this was a smart decision by Congress to protect its treaty ratification powers and the Western Alliance. But if you don’t respect the ink on the paper, it may not be much of a barrier.
Here’s the summary from the Congressional Research Service.
Seems pretty cut and dry right? The president cannot unilaterally withdraw from NATO. But what is a withdrawal? Is it going on TV or posting on Truth Social? “As of this day I, President Donald J. Trump, am withdrawing us from NATO.”
Maybe?
But it would require Congress to step up. Who would have standing to sue to keep America in NATO? How long would the case take to work its way through the system? And would the Supreme Court even take the case? As we saw when Trump misappropriated money from the Department of Defense to fund his wall, the judiciary determined that the unconstitutional action had to be disallowed by Congress. Which functionally meant a veto override level of support for blocking the President’s action.
Does that seem likely with this Congress? Or any you can imagine existing in the near future?
But hey, that’s making it hard on everyone. It needn’t be so. Trump could just withdraw without announcing it. American forces stationed in Europe are NATO’s bulwark. If we were to pull out troops, what would it matter if we were still treaty signants? The damage is done at that point, regardless of what the paper says. Is it a bad time to mention this is kinda sorta being discussed? And what could Congress do about that? The President is the commander-in-chief. Can they really stop him if he’s only claiming to be moving troops around? That would go double for the courts. I don’t even know what kind of lawsuit you could file here, or what the standing would look like, but they’re not gonna tell the executive how many troops to keep in Europe.
And about that Article 5 commitment all NATO members take. An attack on one is an attack on all. It is a defensive agreement. It is not an offensive agreement. America could not invoke Article 5 to receive support for the Afghan War, we had to find allies for the pre-emptive war in Iraq. But if you are an absolutely shameless human being, well then how you define offensive and defensive are totally arbitrary. For example, what if Russia invaded the Baltic states in an act of naked imperialism, but the President refused to honor Article 5 because he declared that the Balts were at fault?
That would be crazy right? Right?
“But Congress declares war!” What do you think Congress’s appetite for declaring war is, with a president totally uninterested in fighting one? But also one where can’t (or won’t) impeach? How would that work?
Trump 45 taught us the importance of putting the things we care about into law. Trump 47 will teach us that means nothing if the underlying behavior isn’t faithful. Presidents operate within wide bounds; if they don’t respect the law, then they can find ways to go around it. We’ve seen it in small ways with past presidents (Obama and the Dreamers, Biden and student loan debt forgiveness) but there is potential for this to go much further. And the check on this behavior is not what the law says, but norms of behavior about what a person thinks they can reasonably do. Law is a last defense of our institutions; “That sort of thing just isn’t done!” is the truly important one.
This time, I believe America may learn a painful lesson about how the norms really protected the laws. That without those norms it isn’t so much of a leap to start subverting laws in clever ways. Because at the end of the day, laws are ink on paper. They have no power over us, except for the power we give them. And they can be easy to work around for those possessing the shamelessness.
This is a great point.
(continues reading the essay)
Oh, I see that we think that this started with Trump.Report
The essay mentions “Obama and the Dreamers, Biden and student loan debt forgiveness.” It could have also mentioned Carter’s unilateral withdrawal from the Taiwan defense treaty, but the biggest source of unilateral treaty breaking was FDR. FDR was popular and couldn’t be challenged. Carter wasn’t nearly as popular but he won before the Supreme Court in a fractured opinion.
I am currently looking for a federal grant to pursue litigation that would decisively confirm that the Taiwan defense treaty is still in full force because Carter had no Constitutional authority to withdraw. This work will focus on finding the perfect plaintiff with standing. If successful, I see this project as providing an economic boon in the vicinity of whichever courthouse ends up in charge of enforcing the treaty against those that would deny it’s existence.Report
Eh, those were small. According to the essay.
As such we probably shouldn’t count them.
As for Carter… hrm. The Constitution talks about making treaties but it doesn’t talk about ending them… and this wasn’t challenged?
And then I googled and saw… oh. Goldwater.
Yeah, with his name on it, it was doomed. He could have said “the sky is blue” in 1979 and the Supreme Court would have shot it down.Report
Plenty of SCOTUS ex post facto stuff. This one goes way back
https://constitutioncenter.org/blog/the-louisiana-purchase-jeffersons-constitutional-gambleReport
This was a really good piece.
My big picture take on America is that we’ve been coasting on our triumph in the Cold War without any serious long term thinking since maybe the early 90s. It’s allowed our politics to develop into a form of post truth self indulgence, as if everything is guaranteed to be as good as it was in 1999, forever, and anything else is an aberration. We’re now at the point I’d liken to swinging a sledge hammer at random pillars and walls, without ever once checking the plans, or testing the structure. Some of them may well turn out to be cosmetic only, but others might not, and we won’t find out until some or all of the building collapses.Report
The GOP was thinking the whole time. They have been locked into this path since the mid 1960’s.Report
I think there really was a battle for the soul of the GOP, and American conservatism generally, starting before the 60s, when Dixiecrats begin turning to the Republican Party, then continuing into the 60s with the fallout from the Civil Rights Act, the paleo-neocon battle, and their beginning to really cater to Evangelical/Christian conservative voters in the late 60s and 70s. I think you could probably say that’s when they started on the path that leads to Trump (Christian conservatives are a big part of MAGA), or that it started with Reagan, or the Contract With America, but I think you really start to see the old political norms erode in such a way that a Trump becomes possible under Dubya, and in particular after 9/11. We just became a different country, politically, after that, as evidenced by the unadulterated awfulness of the Bush administration pretty much from that date on.
That, at least, is when a lot of people on the left, including progressive Dems (hell, even some centrist ones eventually), and a lot of libertarians, began warning that we were headed down a dangerous path of increased executive power and an increasingly divided polity (especially after the invasion of Iraq began to go south, but probably inevitable even without that given the 50+1 strategy). Throw in financial instability, continued outsourcing, increased inequality, etc., and you have a recipe for, well, now.Report
Reagan was Goldwater + Neocons.
Trump is Goldwater without the Neocons.Report
…headed down a dangerous path of increased executive power…
This is a statement I bring up whenever Team Blue argues we should use the Fed to force the states to do something and/or increase the size of gov’s regulation and entitlements.Report
I’m thinking a little bigger than just the GOP. Say what you will about our flaws but we used to be a forward looking society.
Now all major political movements in the country are backwards looking, arguing over how to carve up the slowly diminishing spoils of past successes.Report
Many of us still are. It’s why the GOPs retrograde proposals are so unpopular.Report
No, I disagree. I think the mainstream left is just as bad on this point and totally lacks a plausible vision for the future. It’s just a lot less stupid and crazy and is therefore more likely to let us stagnate into slow but certain decline and disrepair.
The left tries to bake cookies using supplies from a slowly emptying cupboard and passes them out based on increasingly arcane rules and sophistry. This is much, much, much better than sending a bunch of maniacs running around the house with chainsaws and sledge hammers which is all the brain addled Republicans can do but it isn’t anything like plan. We lose either way, just a question of speed and spectacle.Report
One thing I’ve noticed is that Americans tend to have a very formalist view of government – most of people’s understanding of how government works is about what is written down. But it’s consequences, not words that define people’s decisions – laws and norms only affect what happens if there are consequences for breaking them. For a President, that means one of three things:
1) The voters reject them.
2) The legislature impeaches (and convicts) them.
3) The courts rule their actions illegal, and the executive branch refuses to follow those orders.
Steps 1 and 2 have already failed. Whether 3 can hold Trump back remains to be seen. But if it doesn’t, a lot of Americans are going to wake up one day soon and discover that the Constitution, and the rights it guarantees, is just a piece of paper.Report
Step 1 hasn’t failed. Trump was (sadly, stupidly, and unlike 2020) legitimately re-elected.
Step 2 I think you’re correct about, as after 1/6 it is unclear to me what plausible scenario might occur that would result in impeachment.
However none of this is without a long history of debate and these issues are discussed in federalist 51.
Probably the most important moment in US history, and a truly seminal one in world history, was George Washington chosing not to run for president again after 2 terms.
Of course we are in dire straights with all this, though I’m not sure the threat is unique to us as Americans. With a simple majority of MPs Westminster systems allow for the jailing, drawing, and quartering of anyone who calls the prime minister a silly fart head. We at least have our piece of paper that would seem to suggest that is not allowed.Report
It’s a failure because the voters had a chance to punish Trump for his lawbreaking in 2024 and didn’t do so. Now he doesn’t have to worry about winning any more elections so the electoral constraint on him is now gone.Report
One big mistake that Biden administration did was not prosecute 1/6 fast and vigorously enough including prosecuting Trump. This combined with the post-COVID malaise and inflation shock led to January 6 being memory holed and Trump returning to office. Maybe a lot of normies saw no difference between January 6 and BLM protests for whatever dumb reason.Report
Agreed. Also, the Democratic leadership should have acted like Trump was a threat, instead of just saying he was. Biden spending his last few hours pardoning people to protect against Trump’s retaliation, while having tea with him at the White House was a bad look.
While I’m wishing for the implausible, the Democrats could have reined in the power of the Presidency in the last four years, like removing the President’s tariff powers.Report
America’s people of color and native tribes might disagree with you based on lived experiences.Report