Trump's Constitutional Trump Card

Article II has a pretty big loophole, at least if you read it the way MAGA (and most of the Supreme Court) does.

There was a horror movie I remember watching when I was about eight years old called The Legacy. (Like any Gen X’er, I was subject to benign parental neglect and so consumed a lot of age-inappropriate TV content.) It is a totally creepy movie, but the scene that really gave me nightmares, and which I still remember to this day, is the end, when the last two survivors try to escape the haunted mansion they are trapped in. They get in a car, and speed off — but the road leads them back to the mansion. They try again, taking a different route, and same thing. No matter how hard they try, or how many different paths they take, it always brings them back to the demon-possessed house.

This is basically how I feel about where we are right now with Trump’s second presidency. As we have seen in the first horrific six weeks, Trump and his henchmen — led primarily by his extraconstitutional presidential surrogate, Elon Musk — have been engaging in Sherman’s March through the executive branch, slashing and burning everything (and everyone, proverbially speaking) they encounter. The million dollar question is: Who is going to stop them?

Enter the Take Care Clause of the Constitution.

Located in Article II, Section 3, this clause states that “the President shall take Care that the laws be faithfully executed.” If you were to neatly delineate the Legislative Branch as being charged with making the law, and the Judiciary with interpreting the law, the Take Care Clause appears to concentrate all authority with enforcing the law in the powers of the President. So who’s in charge of stopping the President? Yeah, that road brings us back to…the President.

Not so fast, you might say. Law enforcement and the administration of justice has to operate at least somewhat independently of the White House to be effective — surely that was what the Framers intended, right? In fact, this fascinating article by Steve Vladeck at One First suggests exactly that. Specifically, Vladeck notes that the Judiciary Act of 1789, which created the office of the Attorney General — a relatively minor post at the time, since the expansion of federal law enforcement didn’t really begin until after the Civil War — was not only ambiguous about to whom the chief law enforcement officer reported, it didn’t even specify who would appoint him. Vladeck writes:

[I]t was hardly self-evident that the attorney general should — or would — be wholly subordinate to the chief executive. Most states at the Founding decided to have their attorneys general chosen and supervised by others. To this day, the attorneys general of 45 states are independent of the chief executive: Tennessee’s is appointed by its supreme court; Maine’s is appointed by the state legislature; and 43 are directly elected by the people. Only five states follow the federal model in which the attorney general is subordinate to the chief executive.

Who knew? (Incidentally, from a comparative law perspective, some countries, like Italy and France, put the investigative/prosecutorial power in the judiciary, while others, like Chile and Hungary, have an independent government office for this function.¹) In any event, President George Washington beat the other branches to the punch and set the norm of making the attorney general a presidential appointment, which continues to today. Still, despite the apparent blanket grant of law enforcement authority in Article II, Vladeck’s historical nugget certainly suggests that the Framers contemplated some daylight between the President and law enforcement, or at least room for the other branches to play a role.

That is the norm we have followed, at least in the modern iteration of the Justice Department, since the turn of the century. As I noted in my recent Substack piece on the FBI, that norm was solidified under the directorship of J. Edgar Hoover, who made sure that no President controlled him or his agents. Indeed, in the Before Times, when we had an independent Justice Department, we could count on the Attorney General, and the FBI, to investigate misdeeds by the White House. And that norm was even codified with the creation of the Independent Counsel in the Ethics in Government Act of 1978, which later involved into the Special Counsel regulations issued by the Justice Department. (Check out my video explainer on this history.)

Enter the so-called “unitary executive” theory.

You have no doubt heard the phrase “unitary executive” bandied about recently, though it has actually been a pet theory of legal conservatives over the past several decades, gaining particular prominence and traction in the post-9/11 policies of the George W. administration. The unitary executive theory rests on the Vestiture Clause of the Constitution (Article II, Section 1), which states simply that “[t]he executive Power shall be vested in a President of the United States.” Proponents of the unitary executive interpret this literally — the President possesses all of the executive powers of the government, and everyone who works under him in the executive branch are merely expressions of this singular (unitary) power. Under this view, law enforcement independence simply doesn’t exist, especially when it involves investigating the actions of the White House: i.e., the President can’t investigate himself. The unitary executive theory not only eliminates any law enforcement or prosecutorial independence, it asserts that the President can start, stop, and direct investigations himself.

Understanding the unitary executive theory is critical to understanding why Trump’s Justice Department and FBI, led by Attorney General Pam Bondi and FBI Director Kash Patel respectively, are slowly morphing into some weird evil Superman version of federal law enforcement. (Last week Patel suggested bringing in the UFC to train FBI agents in martial arts. I just can’t anymore.) It’s clear that both are operating under a legal theory supporting the idea that the “rule of law” means whatever the President says it means. Ed Martin, the interim U.S. Attorney for D.C., finally said the quiet part out loud a couple of weeks ago, describing himself and federal prosecutors as “the president’s lawyers.” So yet another road that leads us back to…the President.

But you say, even if law enforcement is merely the will of whatever the President says, surely the President must obey and stay within the confines of the law, right? RIGHT?

Enter “absolute immunity.”

I’ll give you three guesses — actually, five — for who absolutely looooooooooves the unitary executive theory. They rhyme with Bloberts, Flalito, Skomas, Glavanaugh, and Porsuch. I’ll give you a minute to figure it out.

Trump v. United States basically represents the triumph of the unitary executive theory as an official interpretation of the Constitution. The opinion doesn’t explicitly mention it, but it doesn’t have to — the decision holds that “official acts” can not be prosecuted, and indeed cannot even be used as evidence to prove a wholly separate crime. (I offered a break down of the case here, along with a handy flowchart on what constitutes an “official act.”) Although the Court uses grandiose language about separation of powers, the upshot of the immunity decision is to place the President out of the reach of the criminal laws passed by Congress — and therefore federal law enforcement — as long as the President can couch his illegal conduct as an exercise of his official power (which, P.S., is pretty vast).

[At oral arguments for the immunity case last spring, one of the justices asked Trump’s lawyers what would stop the President from using his official power in unlawful ways. Easy, said Trump’s lawyer; his underlings wouldn’t obey an illegal order! The thing is that under the unitary executive theory, everyone in the executive branch are just Trump clones, presidential powers-wise. It’s not clear to me that any official act — if it is itself immune from prosecution — could create legal liability for someone who followed it. But even if it did, the President has a Reverse Uno card: the pardon power…which is an official act. So then you’re back to square one.]

In short, the Court completely read the word “faithfully” out of the Take Care Clause — that is, the President has no obligation to discharge his presidential duties free of corrupt motives or as a fiduciary of the United States. Basically, the Supreme Court put the legal rubber stamp on President Richard Nixon’s maxim that “If the President does it, it’s legal.”

Conveniently, though, the Court’s opinion doesn’t put the President out of the reach of the courts — they still get to act as a check on the President. That should count for something, right?

The problem is that even that depends on whether the court orders are obeyed by…the President. Yes, that’s right — court orders, including orders of contempt defying them, are enforced by U.S. Marshals. And who controls the U.S. Marshals? If you’re finding your getaway car rolling back up to the front of the White House — AGAIN — you got it. The President. [Keep in mind that the President could also strip judges who get crosswise with him of U.S. Marshal protection, as he has done with Secret Service protection for some former members of his cabinet.]

So now what?

By now you have probably figured out that we have a big problem — the fox is guarding the hen house, as it were. So far, the Trump administration has not openly defied the courts — something that would, officially, be considered a “constitutional crisis.” As I mentioned in my Round Up a couple of weeks ago, I don’t think dwelling on this major red line is super productive, since as this whole post illustrates, there is still plenty of bad and illegal stuff that could happen leading to that point which would theoretically be “constitutional.” But defying the courts would still be very very bad, and worse than what is even happening now.

Still, there are a couple of options, both short term and long term, that offer some hope. In the short term, my friend Glenn Kirschner pointed out to me that the statute creating the U.S. Marshals includes a mandate for them to enforce judicial orders, to wit:

(c) Except as otherwise provided by law or Rule of Procedure, the United States Marshals Service shall execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties. (emphasis mine)

It would remain to be seen whether the Marshals would obey a judge over the President if there were a showcase showdown between the two, and one would hope that wouldn’t in turn result in some kind of federal law enforcement standoff between marshals and another agency. But. It’s at least there in black and white.

In the long term, it’s worth noting that the Necessary and Proper Clause (Article I, Section 8, Clause 18) gives Congress the authority to create law enforcement agencies that are not under the control of the executive branch to bring the powers of the other branches of the Constitution into effect (consider the Supreme Court Police and the Capitol Police). If we are now in territory where we can’t count on this or future presidents to obey and enforce the law, particularly orders of the courts, it might be time to create a separate judicial police force. (I also wrote an article a while back on why the Necessary and Proper Clause means that “process crimes,” like contempt, are different from the other kinds of laws enforced by the executive branch, and ought to be outside the scope of the unitary executive theory.)

Ideally, one would have created such a police force before getting to where we are now. But then again, ideally, we’d never be in a situation where it would even need to be an option. For now, let’s get out of this demon-possessed house, as fast as we can.

1. These systems are not without their own problems. Italy and France’s “inquisitorial system” also existed in Colombia, and is what led to judges being targets of bribery, intimidation, and assassinations during Pablo Escobar’s reign of terror. And as my colleague Kim Lane Sheppele, an expert on Hungary, has explained to me, Orban has managed to find a way to stack even the “independent” prosecutor’s office with his loyalists. My point is only that the U.S. model is neither the only option, nor the obvious one.