Year One: Stress Testing the Constitution

Publication Type: 
Other Writing
Publication Date: 
November 15, 2017

The outlandish hypothetical is in every law professor’s bag of tricks. Can a former president sue a sitting president for defamation? Can a sitting president be sued for inciting a riot while a candidate? These might once have been abstract academic questions, but no more.

Professors expose students to a set of improbable facts meant to test their legal skills, and show them the limits of the law. Hypotheticals always figure large when we discuss what the Constitution says about the President. That’s because some constitutional questions have only rarely appeared in real life, and others never have. What’s more, a president usually feels bound not just by law but by the restraints of convention, and by what the Supreme Court said in a 1982 case was a “traditional concern for his historical stature.”

Any doubts that Donald Trump would challenge the usual ways we think about the presidency and the Constitution were dispelled well before November 2016. Even before he was president, Trump took aim at judges he dislikes—usually ones who have gone against his self-interest or, once in office, ruled against his administration’s policies. Trump’s ridicule embodied a refusal to recognize the role of the judiciary as a check on the executive branch. Nor, as we learned quickly, would Trump follow conventional norms of disentangling himself from his private business dealings once he entered the White House. As president, Trump turned over management of the Trump Organization to his adult sons, but retained his financial interests. That arrangement led to concerns that anyone seeking influence over the president would choose to stay at a Trump property or do business with a Trump Organization business. Perhaps to no one’s surprise, The Washington Post reported that the Trump International Hotel in Washington has recorded “a hefty profit” since Trump took office.

Such apparent conflicts have led to several lawsuits claiming that the president is violating the Emoluments Clauses: two provisions of the Constitution that bar the president from profiting from his position. The Foreign Emoluments Clause prohibits a “Person holding any Office of Profit or Trust” in the federal government from receiving an emolument—a profit or gain—without Congress’s consent. The Domestic Emoluments Clause bars the president specifically from accepting profits or gains beyond his fixed salary from the states or the federal government. These clauses are so obscure that they rarely merit discussion in an introductory constitutional law class. The Supreme Court has had nothing to say about them, and these clauses have provoked no real controversy—until now.

Trump’s lawyers deny that the president’s continued receipt of business from foreign, federal, and state governments violates the Constitution. They may be right. And it may be difficult to persuade a court that anyone has standing—the appropriate injury—that would permit a lawsuit in the first place. But while profiting from the presidency may not violate the Constitution’s Emoluments Clauses, refusing to follow routine conflict of interest practices shows a contempt for norms. We might quibble about what counts as an emolument, but we should raise questions about a president unconcerned about mixing private profit and public duty.

That defiance of norms is on full display with Trump’s use of the pardon power. The Constitution grants the president the virtually unfettered ability to grant pardons and commutations. A president needs no prior approval in granting a pardon, neither from the courts nor from Congress. Past presidents have used their pardon power often, and some say not often enough. (For instance, Barack Obama granted clemency to 1,927 people during his presidency, while George W. Bush did so only for 200; the discrepancy is due in part to the very large number of requests Obama received.) Some presidents, in the waning days of their terms, have issued controversial pardons. We’ve even seen the pardon of a former president (Richard Nixon) by a present one (Gerald Ford).

Read the full piece at The New York Review of Books.