The Powerless President


Donald Trump is learning a lesson he should have known during the campaign. Being president is not like being the host of Celebrity Apprentice or a billionaire boss. Not everyone works for you. They don’t all run around saying that you’re a genius, doing whatever you tell them, literally treating you like a king. Being president is nothing like being a king.

Trump likes to say that when it comes to the Constitution, he believes in abiding by its original intent. Now, it’s very difficult to determine the original intent of the founders as to things they couldn’t possibly imagine – like email searches and drones and sophisticated surveillance. But every school child knows what the founders thought of kings: They were against them; they rebelled to be free of them; they risked their lives to create a nation with no king.

We have three branches of government. We have an independent Federal Reserve Board. We have the unofficial “fourth branch,” which is the non-fake media that Trump so readily disparages [and it happily returns the favor].

So Trump issues a travel ban that gets declared unconstitutional. He attacks the judge. That doesn’t work; even his Supreme Court nominee can’t defend that kind of attack on the independent judiciary.

You see, no one is above the law, which is not a concept you really worry about when you’re talking about average citizens, but it is very much a fundamental principle of democracy when you’re talking about the president. He, above all, is subject to the law. Just review what happened to Richard Nixon when he thought otherwise.

So travel ban No. 1 lands in the reject pile. That does not stop Trump. Condemned by the world as ineffective and unfair, denounced by policy wonks as unjustified and unlikely to make us one bit safer, decried by those who worry about our deteriorating image in the world, Trump remained undaunted. Or perhaps he missed those briefings, like the security briefings he earlier claimed not to need.

In any event, our undaunted leader, still seeming blind to the fact that he is not king, issued another travel ban that was greeted with precisely the same reaction as the first – widely attacked as unconstitutional, racist, ineffective, harmful to the United States, unfair to people around the world, reinforcing of stereotypes and alienating toward law-abiding Muslim Americans on whom we must depend to keep us safe.

And to the surprise of no one who understands the Constitution, the ban’s constitutionality was subject to judicial review, and not one but two federal judges struck it down as unconstitutional.

Two travel bans, three district judges doing their job, each of them with the power to say “No” to the president.

Imagine doing that to a king. No wonder Trump is resorting to the blame game. Issuing orders is easy. Making certain that those orders not only fit with your campaign rhetoric but also comply with the Constitution is a little more difficult.

The president and the attorney general are surrounded by able lawyers who understand the Constitution, and also understand just how wrong it is for a president to be attacking a co-equal branch of government that exists precisely to check his power and that of Congress. As a general rule, attacking those whose job it is to check your power is attacking the Constitutional system.

Of course, having made clear during the campaign that he might ignore the Constitution if he won, having chosen now twice to blatantly violate it, having attacked the press and tried to limit access according to the content of the media [content regulation is the worst kind of government interference with free press], the anti-Constitution crowd is now turning its ire on the courts.

Just a quick reminder: The Founding Fathers had this one down. Not only did they create an independent judiciary, which Chief Justice John Marshall held had the right to engage in judicial review, but they gave these judges lifetime tenure.

Trump enjoys no such freedom. He must figure out how to work with the other branches of government and how to implement policy consistent with the law – or he gets nothing done and loses seats for his party along with his own seat in four years.

And there’s no one to blame for that except those much-revered Founding Fathers. Smart guys.

Susan Estrich’s columns appear regularly in The Oklahoma Observer

March 17, 2017

About Author

Susan Estrich

Susan Estrich

Estrich served as a law clerk for Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia and Justice John Paul Stevens of the U.S. Supreme Court. In 1988, she was the campaign manager for Michael Dukakis’ 1988 presidential run, even though she had never before managed a political campaign. She was the first female campaign manager of a major presidential campaign, and the first female campaign manager of the modern era. [5] [6] Estrich appears frequently on Fox News as a legal and political analyst, and has also substituted for Alan Colmes on the debate show Hannity & Colmes. She writes regular articles for the conservative website NewsMax, for which she is a pundit.[7] She is also on the Board of Editorial Contributors for USA Today.[8] She is currently a law professor at the University of Southern California Law School and a political science professor at its affiliated undergraduate school. Before joining the USC faculty in 1989, she was Professor of Law at Harvard University, where she was the youngest woman to receive tenure.[9] On January 10, 2008, Estrich joined Quinn Emanuel Urquhart & Sullivan, LLP, a law firm based in Los Angeles, where she chairs their Public Strategy in High Profile Litigation: Media Relations practice area. [10][11] She writes a nationally syndicated print column distributed through Creators Syndicate.

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