Constitution depends on the good faith of those who govern us

I have taught constitutional law for 40 years, but the events of the last several years have shown me a powerful lesson: The Constitution depends on the good faith of those who govern us. If they ignore the Constitution and the laws, there often is nothing that can be done about it.

This was so apparent during the Republican Convention a few weeks ago. Under the First Amendment, an incumbent cannot use the resources of his or her office to help secure reelection. Courts have pointed out that doing so prevents there from being a level playing field for elections and this concern underlies many laws. For example, the federal Hatch Act prohibits federal employees from engaging in political activity. This law, adopted in 1939, was motivated, in part, by the desire to keep civil service workers from being pressured to campaign for a candidate for office.

President Donald Trump blatantly disregarded the Hatch Act when he used the White House as a prop for his acceptance speech at the Republican Convention. Although the Hatch Act doesn't apply to the president, it does apply to those in the White House who did all of the work to arrange the setting and make sure it would be broadcast. No one has denied that their efforts violated the Hatch Act. Also, Trump's actions violated the law prohibiting holding partisan activities on federal property. He even taunted those who objected by saying, "we're here and they're not."

Yet, nothing can be done about this. Even the federal employees who knowingly violated the Hatch Act face no consequences. The Merit Systems Protection Board -- a federal agency responsible for enforcing many important laws concerning the federal work force -- has no members because President Trump has appointed no one. The president has a constitutional duty to "take care" that the laws are faithfully executed. But if a president doesn't, such as by killing an agency by appointing no one to it, there are no consequences.

Last week, the Department of Justice announced that it would represent Trump in defending a defamation suit brought by E. Jean Carroll who accused Trump of rape. This has nothing to do with Trump's actions as president, any more than Paula Jones' suit against Bill Clinton for sexual harassment pertained to his actions as president. Clinton was represented by private counsel, as Trump should be. The Justice Department exists to represent the interests of the United States, not the president as an individual. This distinction obviously is lost on Attorney General William Barr. Again, it doesn't seem like anything can be done about it.

On Friday, President Trump filed a petition for a writ of certiorari for review of a 2nd Circuit decision that would allow litigation against him to go forward for violating the emoluments clauses of the Constitution to go forward. This suit was filed, and I should disclose that I was co-counsel, on Monday, Jan. 23, 2017. The district court dismissed the case on justiciability grounds, the 2nd Circuit reversed, and recently that court denied en banc review. The complaint alleges that Trump is violating, literally daily, provisions of the Constitution that prohibit him from profiting from foreign countries or the United States, other than the salary he is paid for the office. Yet, four years into the Trump presidency the litigation drags on and one wonders whether anything will happen even if Trump has another four years in the White House. These constitutional prohibitions become meaningless if they are not enforced.

The examples go on and on of how much we assume good faith and how it has been absent. In June, in Department of Homeland Security v. University of California, the Supreme Court held that President Trump violated the federal Administrative Procedures Act in rescinding the Deferred Action for Childhood Arrival Program. Chief Justice John Roberts' majority opinion said that Trump could do this, but had to follow proper procedures. The Trump administration neither did this nor complied with the Supreme Court's order. Instead, without adopting a new policy, the Department of Homeland Security in clear disregard of the Supreme Court has stopped taking new DACA applications and reduced the period of DACA status from two years to one year.

In late 2018 and early 2019, President Trump shut down American government for 35 days, the longest shutdown in history, to force Congress to appropriate money to build his border wall. Even with a Republican majority in both the House and the Senate, Trump could not get Congress to approve this. Trump capitulated and agreed to a budget without funding for the border wall. He then went ahead and spent money from the Defense Department budget without congressional authorization, in clear violation of the Constitution which vests the spending power in Congress and the terms of a federal law which prevent such transfers when Congress has refused to appropriate funds. A federal district court and the 9th Circuit have said that this is impermissible, but nonetheless the money is being spent and the wall is being built.

It is not just the president who is ignoring the Constitution without consequences. In 2016, President Barack Obama nominated Chief Judge Merrick Garland for the Supreme Court. The clear expectation under the Constitution is that the Senate will vote on presidential nominations. Prior to 2016, 24 times in American history there had been a vacancy on the court in the last year of a President's term. In 21 instances, the Senate confirmed and in three the Senate denied confirmation. Never before had the Senate said no hearings and no vote. But there was nothing anyone could do about it. The Constitution assumes the good faith of the Senate and when it did not exist everyone else was powerless.

I could give many more examples. They all share in common revealing the extent to which constitutional provisions rely on the good faith of those holding office and when that is absent how little can be done. Ideally, I would like to see the law change and for mechanisms to be created whereby there always is someone who can go to court to stop unconstitutional government behavior. Even more important, I hope that we will have a president who will follow the Constitution and federal law, even when it cannot be enforced by the courts. 