Teaching constitutional law and politics in 2017

Former New York Times correspondent and current fellow at Brown Stephen Kinzer recently wrote in the Globe of the unrestrained authority that the president of the United States possesses to launch a nuclear attack on any nation whenever the whim strikes him. He expressed his fears that this was a possibility, given President Trump’s recent comment “of thinly veiled threats of nuclear first strike against North Korea.”

Kinzer raises a topic that requires a much broader context, especially for those of us who teach the Constitution as a routine matter each fall semester. One of my courses introduces students to the origins of the Constitution, the rise of judicial review, the separation of powers, federalism, and other matters that many students find, quite frankly, very mundane, even boring.

Not so this year. Kinzer raises an issue that requires all those who teach the Constitution and the law to draw on President Trump’s first seven months in office. The president’s words and actions have achieved the promise of turning a routine course into an exciting one.

The framers of the Constitution worried about the concentration of power. They did their utmost to ensure that no one branch of the government predominates over any other. Thus, for example, as we know, the president serves as the commander in chief of the Army and Navy (we would say the armed forces today), but only Congress has the power to declare war. And yet presidents have used a concept known as the unitary executive, that presidents have a free hand to protect the national security of the American people whenever they so decide.

The result? Congress has used its war powers only five times in our history: the War of 1812; the Mexican War (1846-1848); the Spanish-American War of 1898; World War I, and World War II. But presidents have ordered troops into military action over 130 times, sometimes based on vaguely drawn-up congressional resolutions: see, for example, the 1964 Gulf of Tonkin Resolution, which led President Lyndon Johnson to vastly increase U.S. troop strength in Vietnam, or the two Authorizations for the Use of Military Force (2001 and 2003) that led to the current U.S. war in Afghanistan and the toppling of Saddam Hussein in Iraq.

But other issues raised by President Trump’s short tenure in office are promising areas of discussion and debate as well.

Must the attorney general of the United States — in this case Jeff Sessions — the director of the FBI, or a special counsel like Robert Mueller be loyal to the president, or to the Constitution and the people? Historically, the Justice Department and the bureau were regarded as independent of the president, especially if there was an investigation involving the executive branch. Because of the ongoing search to determine Russian interference with the 2016 presidential election, and any collusion by the Trump campaign with Russian operatives, should the investigators be neutral in their work or support the president?

If the president dismisses a subordinate, such as when President Trump fired FBI Director James Comey this past May, does this action undermine the investigation into whether the Trump campaign possibly colluded with the Russians? Does the dismissal constitute obstruction of justice, which is a federal crime?

Can a sitting president be indicted? This has never happened in American history, but if an investigation turns up wrongdoing, it would make an interesting constitutional question for the courts to decide, and a great issue for class discussion.

By the same token, can the president pardon himself? Presidents have unlimited authority to pardon convicted felons, and fascinatingly, even the power to pardon someone who has never been indicted for a crime. President Gerald Ford pardoned Richard Nixon, who was never indicted for anything regarding the Watergate affair in the 1970s. But what about a president in office who has been, or is about to be, indicted? Fascinating question.

Can the president accept financial benefits from foreign governments? For the first time, many commentators have addressed the provision in the Constitution known as the emoluments clause, which is in Article I, Section 9. It prohibits anyone holding office in the federal government from accepting, without the consent of Congress, “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign state.” This means that the president may not accept any money from a foreign government, but President Trump owns and operates hotels, casinos, and country clubs where many foreign diplomats and officials stay.

I have never discussed the emoluments clause in my course, but I surely will now.

The Constitution requires the president to “take care that the laws be faithfully executed.” President Trump, frustrated over Congress’s inability to repeal and replace the Affordable Care Act, has indicated that he would allow it to “implode” on its own; that he would not support the law. Can he do so without violating his trust?

Finally, what about removing a president from office? Congress possesses the power of impeachment, and it has been used twice in our history. Almost three times, but President Nixon resigned before the articles of impeachment reached a vote. Impeachment requires the House of Representatives to pass by a simple majority vote whatever articles of impeachment are brought before it. To remove a federal officer, including the president, however, the Senate must accept these articles by a two-thirds vote.

President Andrew Johnson escaped this ignominy by a single vote in the Senate, while President Bill Clinton fared much better there.

Would a Republican-controlled Congress impeach a president who is a member of their party? Should they?

And then there is the 25th Amendment, which again I have never discussed in class. Section 4 allows the vice president and a majority of the cabinet to inform the president pro tempore of the Senate and the Speaker of the House that in their judgment “the president is unable to discharge the powers and duties of his office.” At that time, the vice president immediately assumes office as acting president. If the president argues he is able to continue in office, then Congress decides the issue.

There are several other issues that we will discuss in this course. But all in all, it promises to be an exciting time to be in the classroom this fall.

 

Jack Fruchtman teaches constitutional law and politics at Maryland’s Towson University.