American democracy is premised upon a balance of power between the legislative, executive, and judicial branches of government. Although at times we view the executive branch as being all powerful, the reality is that the limits of each branch are constitutionally defined.
Being president of the United States is not the same as being president of a company in which you own a majority of shares. Nor is enacting policy proposals as president the same as espousing opinions at cocktail parties as a private citizen. Although there is the power to issue executive orders, the legislature must still pass new laws and fund government programs, and even with a Republican majority in both houses of Congress, I expect there will be shifting coalitions that cross party lines since President Trump does not always believe in traditional Republican or Conservative values.
Moreover, executive actions that conflict with constitutional limits are likely to be challenged in the courts. Although some fear that presidential appointments to the Supreme Court will eliminate the precedent of prior constitutional interpretations, that is unlikely. There has always been a long-term stability on the Supreme Court that politics does not affect. The Supreme Court and the federal judiciary place a high premium on judicial independence and integrity. I would expect that despite political pressures, Republican-appointed Supreme Court justices will still tend to place a premium on the principle of stare decisis. The law does evolve, but radical zig-zags are rare.
Moreover, President Trump’s first appointment to the Supreme Court is to replace Justice Antonin Scalia and, hence, it is likely to preserve the pre-existing balance on the Court. One could even argue that the possibility of replacing Judge Scalia with a more liberal appointment favored the Republicans in the presidential election.
Our system of government contemplates both giving a new president some leeway to implement his own agenda and approach, balanced by opposition from a loyal opposition and constitutional constraints imposed by the judiciary and legislature and an active press. President Trump has sometimes demonstrated that he will personally attack those who oppose his decisions and policies. But everyone must do their job vigorously for our system to work properly, to support each branch of government, and to protect and support the press in doing their job. Our system contemplates offering some feedback after two years and definitive feedback after four years.
The president has a mandate for change, or at least a change in approach, which was presaged by the strong showing by Bernie Sanders and the weakness of Jeb Bush and other more traditional candidates. That mandate for a change in approach does not mean that constitutional safeguards can be abandoned. President Roosevelt’s attempt to pack the Supreme Court so as to facilitate his own mandate for change proved to be one of his least popular initiatives, and failed.
We owe President Trump some leeway in his advocating a different approach, but that does not mean not challenging that approach through constitutional means where appropriate, nor does it mean standing silent for an approach that does not meet with our own standards for a just society. We should also not shy away from defending those who are unfairly attacked from the White House, such as Judge Gonzalo Curiel, so as to preserve that constitutional balance. Irrespective of the balance of constitutional power, the president does have the bully pulpit or perhaps more aptly, the “Presidential Tweet.” It’s important that the bully pulpit or tweet not be used as an instrument of intimidation for those who play a role in the balance of power. It’s important that our constitutional process and the rule of law be allowed to work as intended.
Mark J. Moretti is president of the Monroe County Bar Association and is the leader of Phillips Lytle LLP’s Construction Litigation Practice Team. He can be reached at firstname.lastname@example.org.