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Bill Whitaker: A Constitution 101 refresher for anxious times

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Last week was the perfect time for our nation to mark the 232nd anniversary of the U.S. Constitution’s signing, if only to fully comprehend political forces further trampling the founding document into irrelevance. On Constitution Day 2019, two of three former Trump administration officials, acting on instructions from the White House, ignored subpoenas to testify before Congress. The third showed up and acknowledged lying to the very press that President Trump dismisses for producing “fake news.”

Meanwhile, the Trump administration was busily circumventing the power of the purse that the Constitution reserves only to Congress. Trump has done so by declaring a dubious national emergency, using it to plunder money allocated by lawmakers to fund U.S. military expenditures. Instead he’s using it to fund a border wall on the southern border of the United States in defiance of Congress. Irony: Trump signed the legislation that limits wall funding to a certain amount, then declared an emergency to bypass Congress and spend more.

Even former Judge Andrew Napolitano, a Fox News analyst, raised a warning cry about the strain placed on our nation’s founding document. He questions “presidentially ordered mistreatment of families seeking asylum in the United States by separating parents from children — in defiance of a court order.” Napolitano has questioned executive overreach by President Obama, a Democrat, and President George W. Bush, a Republican, but the “audacious manner of Trump’s employment of presidential powers has brought it to public scrutiny.”

And on Constitution Day, the Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations, sounded alarm over Trump-appointed federal judges being recklessly confirmed to possibly sort out such grave constitutional questions. It highlighted fewer Senate protocols than ever in determining the integrity and judicial thought of such appointees: “Of the 19 judicial nominees awaiting floor votes, 10 refused to unequivocally state that Brown v. Board of Education was correctly decided. This is unacceptable, and senators should reject nominees who fail to state that the decision ending legal apartheid in education was correctly decided.”

Finally, Supreme Court Justice Neil Gorsuch’s book, “A Republic, If You Can Keep It,” arrived in local bookstores, complete with its central theme of championing the tyranny-defying separation of powers in the Constitution and the concept’s system of checks and balances. It’s a concept he risks betraying as cases move into his sphere concerning multiplying instances of executive overreach by the president who not only appointed him but who once claimed to favor Article XII (it doesn’t exist) and this summer said Article II allows him “to do whatever I want as president.” No wonder Constitution lectures these days are so robust.

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Constitutional defenders legitimately lambaste Trump for running roughshod over structural constraints built into the Constitution. Yet it’s pretty hard to ignore the hypocrisy and complicity of Republicans such as the congressman representing our stretch of Central Texas, who spent much time championing the Constitution and decrying executive overreach when a Democrat occupied the White House, yet has offered little resistance as a Republican president pursues even greater executive power in clear defiance of Congress.

Context matters. Under Democrats and Republicans alike, Congress has steadily contributed to this slow-motion crisis, ceding to the executive branch sweeping powers set aside for legislative purposes by Article I of the Constitution. Most notable in this unfortunate reordering: the National Emergencies Act of 1976, which allows the president considerable power in determining what qualifies as a national emergency. It’s through this mechanism Trump now reallocates $3.6 billion in military funding for a border wall, Congress be damned.

“It seems the Congress wants to do everything but legislate and everybody else wants to legislate,” constitutional scholar Robert P. George said at Baylor Law School Wednesday. “I want to get back to it. I’m serious about this. I think the Constitution is a great doctrine and we should try living by it. We can begin by remembering that all legislative power that belongs to the United States — the states are another issue — but the legislative power of the United States is simply in the Congress. So it should legislate and protect its own prerogatives and authorities against degradation by the other branches of government. And it’s been very poor at that.”

At one point, George — holder of the Princeton University McCormick Professorship of Jurisprudence (once occupied by Woodrow Wilson), director of the James Madison Program in American Ideals and Institutions and noted for his articulately put pro-life views — asked the Starr Federalist Papers lecture crowd at Baylor Law School to cite the “most neglected, unappreciated word” in the Constitution. Ken Starr, former federal judge, Waco-based constitutional scholar and former Baylor president for whom the lecture series is named, nailed it right off: “all.”

“Make that man a judge because that’s exactly right!” George exclaimed. “The most overlooked, neglected word in the entire Constitution is the first word of the first sentence of the first paragraph of the first article of the Constitution, which Ken just quoted: ‘All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.’ There’s no similar ‘all’ when it comes to the judiciary or the executive power. I don’t know what there is about the ‘all’ that people have a lot of trouble understanding, but they seem to have an awful lot of trouble understanding, including members of Congress, because an enormous amount of legislative power today and for a long time has been exercised by presidents, by their agencies and by judges, the courts.”

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Constitutional scholar Robert P. George: “We have compromised the real separation of powers. It’s not just in the gray areas.”

George stressed the root evil in all this — blind loyalty to self-serving political parties.

“Part of the problem is that political partisanship undermines the protective mechanism,” he charged. “By the protective mechanism, I mean the jealousy, the honorable jealousy, that members of the legislative houses should have for their institutional bodies. Senators should be jealous to protect the authority of the Senate and members of the House should be jealous to preserve the authority of the House. And that jealousy — which should also be zealous as well as jealous — should cause them to push back against presidents of their own party, and not just the president when it’s the other party in the White House, when they do a raid on legislative authority. But that’s not what we have.

“Republicans and Democrats are equally guilty of competing with each other to be more guilty about this,” George said. “If it’s a Democratic president, you can usurp the authority of Congress and Democratic members of Congress are just going to fall in line and say, ‘Oh, I don’t see any problem here.’ Same with the Republicans. A Republican president can be doing the same darn thing they criticized a Democratic president three years ago for, and the Republicans all fall in line: ‘Oh, I don’t see any problem here. Presidents rule by executive order.’ Yeah, but three years ago you said the president, and it was a different party then, shouldn’t rule by executive order. ‘Oh, well, things have changed!’”

Separation of powers

James W. Ceaser, Harry F. Byrd Professor of Politics at the University of Virginia (founded by Declaration of Independence author Thomas Jefferson), said much the same in a Constitution Day lecture at Baylor on Monday: “In the last year of the election, two political scientists — both well known, one from Stanford, one from Chicago — wrote this book, and I think they were sure Hillary Clinton would be elected president. The gist of the book is separation of powers is outdated, we really can’t allow Congress to be involved in any of these things, that people [representing] Waco or Cleveland, Ohio, or somewhere like that, they don’t know what the world is like, so give all power to the president and then allow Congress some power afterward with a two-thirds majority to overrule the president.

“I think they’re embarrassed by this book in light of what happened in the election.”

Ceaser cautions that, for all the concern about pressure put on the Constitution, President Trump has been checked several times thanks to powers laid down by constitutional checks and balances: “Something that is more serious is that Congress over the years through statutory law has ceded in so many areas large chunks of power to the president, a serious mistake. Can Congress ever get it back? In theory they can get it back. But if these laws are written in perpetuity, it would take two-thirds majority over a [likely] presidential veto. This is a bit of a problem. Congress is aware of it and many talk about taking back power they’ve given to the president to determine tariffs and foreign affairs and the like. So a lot of work needs to be done there.”

Article One Act

Whatever views lawmakers have about a border wall, some are working to reverse matters . In July, the Senate Homeland Security and Government Affairs Committee, in a bipartisan vote of 12-2, moved forward the Article One Act, which would restrain presidents in their declarations of national emergencies, allowing such declarations to remain in effect for no more than 30 days unless Congress formally voted its approval. Even so, the bill has significant loopholes.

“If Congress is troubled by recent emergency declarations made pursuant to the National Emergencies Act, they only have themselves to blame,” said Republican Sen. Mike Lee, who authored the bill. “Congress gave these legislative powers away in 1976 and it is far past time that we as an institution took them back. If we don’t want our president acting like a king, we need to start taking back the legislative powers that allow him to do so. ”

Ceaser says our polarizing times have put a focus on the Constitution in ways few of us have ever seen. “You read about the Trump election and where Democrats stand today and where they’re in favor of elements of the Constitution because they want to check Trump,” he told me. “But the natural tendency over time is that there is much less disposition in America toward veneration and reverence [for the Constitution], much less. For the minute, yes, [the Constitution is prioritized], but I don’t think that’s the natural disposition of the young today. So we’ve lost this. I try to do my best. I have a car with a vanity license plate, ‘Federalist 49,’ a reminder to all those on the road, especially those who tailgate. And they should go back and read this paper.”

Baylor alumnus and Dallas attorney John Chiles, who along with wife Marie sponsors the Federalist Papers lectures, says many Americans would agree that government has grown far beyond the Framers’ vision. “One of our biggest worries, at least for a lot of us, is the use of power by the president through administrative agencies,” he told me. “You know, we’re governed this day and age, especially in the commercial area, by administrative agencies — not by the president, not by the Congress. The courts have even abdicated to what’s been described as the fourth branch of government, the administrative agencies. I think we’re trying to push that back to some extent — we’ve had a little luck in the courts — but it’s appalling. I’m not condemning all their actions, they’re sometimes necessary to protect our rights and the environment and so forth, but we’re often governed by administrative agencies.”

Health of our republic

This raises a serious question about the health of our constitutional republic, movingly answered by George in his address “Restraints on Federal Power: Constitutional Structures and Civic Virtue,” focusing not just on those who transgress constitutional boundaries, not just on how coming generations may or may not view the Constitution as a safeguard of liberties against politicians who would be kings. He highlights what is crucial here and now during a time of social and political upheaval. He focuses on We the People: “Constitutional structural constraints are important, but they will be effective only where they are effectually supported by the people — that is, by the political culture, a culture affected by the behavior of politicians, office-holders. But people need to understand [constitutional principles] and value them, value them enough to resist usurpations by their rulers, even when unconstitutional programs offer immediate gratifications or relief from urgent problems. This in turn requires certain virtues in the people, strengths of character in the people. These virtues don’t just fall from the heavens. They have to be transmitted through the generations and nurtured by each generation. Madison said, and this is a famous quotation all of you have heard, that only a well-educated people can be permanently a free people.”

Yes, a powerful though hardly reassuring message for Constitution Day 2019. Are many of us transfixed by political personality cults to the point of willful ignorance about constitutional tenets, as conservative George Will suggests? Is such fealty worth forsaking bits and pieces and finally bleeding chunks of the Constitution that the Framers painstakingly crafted to avoid our slide into the tyranny and anarchy Jefferson and James Madison knew well from world history, including Rome? The answer may well come from a conversation I had last week with David Clinton, chairman of Baylor’s political science department, who remarked with wonderful insight that many of us regard the Constitution with such intimacy and confidence that we imprint our own values, beliefs and biases into our conception of the founding document without bothering to ever discover what it actually demands of us all.

Bill Whitaker is Trib opinion editor.

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