How the law will keep President Trump in check
“Winning is easy. Governing is harder.” – Lin-Manuel Miranda, Hamilton
Candidate Donald Trump ran on a bold “us v. them” agenda: deport undocumented immigrants, racially profile Muslims, build a giant wall with Mexico, and much more. President Trump is about to hit a wall of his own, as he discovers one of the hallmarks of the American system of government: checks and balances.
As we all learned in eighth grade social studies, the president runs the entire executive branch: the military, the Justice Department, the FBI, CIA, NSA and many other agencies. He can hire and fire FBI Directors, for example. (Does he like Director Comey for the last minute boost, or not? We shall see.)
But he will not be king. He is about to discover the striking difference between running a company, where he can simply issue edicts that must be followed, and running America, where all of his actions must comply with the Constitution.
Rhetoric and reality
For example, President Trump could not order the FBI to single out American Muslims for extra surveillance. That would surely violate not only the Fourteenth Amendment’s requirement that all Americans be guaranteed equal protection of the laws, but also the First Amendment’s right to freedom of religion. A New York court issued a stinging rebuke to New York City’s stop and frisk practice a few years ago, for example (which Trump is apparently still in denial about), finding that its racially biased outcome rendered it unconstitutional.
A second and co-equal branch of government, Congress, will also be a check on Mr. Trump’s excesses. The US Congress, of course, passes laws and funds programs. And while it’s true this Congress will be majority Republican (at least until the mid-terms in 2018), this is far from a unified Republican party. Many Republicans have clashed with Trump during the campaign, especially on the issue of immigration reform. It’s unclear the extent to which President Trump will be able to work with Congress.
Furthermore, Republicans are often fiscally conservative. The president cannot simply order the construction of a wall that would likely cost tens of billions of dollars (and of course, he has no way to make Mexico pay for it, no matter how often he says it) without pushback. Plus, Democrats in Congress can still (and almost certainly will) filibuster, slowing down or stopping controversial proposals. And while there’s talk of the all-Republican Congress changing procedural rules to try and reduce the effectiveness of filibustering, this would be a short-sighted move on the GOP’s part—there will come a day when the Congress (and the presidency) is back in Democratic hands.
But our independent judiciary, the third co-equal branch, will be the strongest check on any abuses of power attempted by President Trump.
The real meaning of “law and order”
Trump has spent many years fighting (and losing) battles in court, mostly over business-related lawsuits brought by jilted contractors and other former associates. So maybe he feels comfortable in a courtroom. Which is good. He’ll need all the experience he can get, because much of what he has proposed is unconstitutional, and the courts will likely say so.
Furthermore, Trump will quickly find that business law and constitutional law are vastly different beasts. Mr. Trump has threatened to sue the New York Times. The First Amendment makes that a no go. Racial profiling, which Trump has called for? Courts have struck it down as violating the Fourteenth Amendment’s guarantee of Equal Protection of the laws.
Ban all Muslims? He’ll be hit with lawsuits based on the First Amendment’s prohibition of establishing a religion, and the Fourteenth Amendment’s Equal Protection Clause. It may also violate international treaties.
Could President Trump order the IRS to audit his enemies? No. A court would likely find that the President was unconstitutionally punishing them for exercising their First Amendment rights.
Sue the women who have accused him of sexual assault? Good luck with that. The First Amendment protects their right to speak out. As a high profile public figure, he’d have to prove by “clear and convincing evidence”—a high legal standard—that they deliberately lied. (Note: I’ve represented four Trump accusers in the last few months, and I’ve said publicly that I would proudly represent for free any women sued by Donald Trump for making truthful statements about sexual misconduct, and crowd fund defense costs.)
How about rounding up and deporting those here illegally? While many undocumented workers are already deported, Mr. Trump’s stated goal of deporting eleven million people would require heavy funding (by Congress) and then searching out, finding, rounding up and removing people from the country in a manner that does not violate Americans’ rights to be free from police state tactics, unlawful searches and seizures, and racial profiling. Such an effort would surely be met with massive lawsuits to protect Hispanic Americans’ rights. And the Due Process Clause of the Fifth Amendment applies to everyone in the United States, not just citizens.
The rule of law, not Trump
The president is not above the law. We learned that when then President Bill Clinton had to respond to a sexual harassment lawsuit while he was in office. A sitting president can be sued, although his attorneys can ask the court for a stay, that is, for a hold on the proceedings so that the President may conduct important business. Mr. Trump is currently staring down various Trump University fraud cases, and his lawyers are seeking to delay them now on the ground that he is busy. Of course, he’s about to get much busier, running the country.
Finally, an assurance for the nation’s women and girls: You may be worried about your personal safety right now. It may feel as though Trump’s election has normalized or somehow validated the ugly and misogynist statements that he and his followers repeatedly made on the campaign trail. But this election hasn’t suddenly made sexual assault legal. Laws exist, and are here to protect you. If Trump—or anybody else—gropes a woman, he can and will be subject to vigorous criminal prosecution and civil suits.
We are a country of laws that even the President must follow. It’s easy to huff and puff on the campaign trail. President Trump is about to be humbled by something he cannot beat with insults or threats: the US Constitution.
The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.
Image courtesy of businessinsider.com