In Times Without Norms, All Laws Fall Silent

Photo by Department of the Interior via Wikimedia Commons, Public Domain

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.