The Constitution is not a grant of power for a king.
It is, instead, a grant of authority from the sovereign people to establish a republican form of government — a representative democracy of limited and enumerated powers. And the republican character of American constitutional government is expressed in the way it divides the executive, legislative and judicial powers among separate institutions.
“In the establishment of a free government,” a 19th-century Supreme Court justice, Joseph Story, observes in his “Commentaries on the Constitution of the United States,” this division “has by many been deemed a maxim of vital importance, that these powers should for ever be kept separate and distinct.” When those powers are mixed in a single individual, “such a form of government is denominated a despotism, as the whole sovereignty of the state is vested in him.”
It is not, as Story continues, that the “departments of government” should have “no common link of connection or dependence, the one upon the other, in the slightest degree.” Rather, it is that “the whole power of one of these departments should not be exercised by the same hands, which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free constitution.”
In our system, the executive branch cannot exercise the full power of the legislature. It cannot act as a monarch would. The sovereign people did not imbue their power into a leviathan. The upshot of this is that any interpretation of the Constitution that grants the president monarchical power is wrong. The structure of the Constitution precludes a royal prerogative and the ethos of American democracy forbids it. Otherwise, the revolution was for nothing.
Last week, Donald Trump proposed for nomination — to key agencies, including the Department of Defense, the Department of Health and Human Services and the Department of Justice — a group of unqualified apparatchiks, sycophants and conspiracy theorists.
As loyalists, they were picked as agents of Trump’s will, less independent administrators than a group of glorified Renfields. The problem for Trump is that his nominees are so unqualified that they may not have the votes to be confirmed, even in a Republican-led Senate. One of them, the former Representative Matt Gaetz of Florida, has already dropped out of contention for the role of attorney general in the wake of new evidence of sexual misconduct with a minor at a party. Gaetz has denied any wrongdoing, and the Justice Department declined to charge him last year.
Gaetz aside, Trump has let it be known that he would like to adjourn Congress and install his nominees as recess appointment, to avoid the humiliation of losing a confirmation battle and to assert dominance over the Senate. To do this, Trump would invoke an unused power found in an obscure provision of Article II, Section 3 of the Constitution, which states that the president may “on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.”
Under one theory of the case, Trump would push the Republican House majority under Speaker Mike Johnson — another loyal ally of the president — to adjourn the House of Representatives. Either the Senate majority would agree to enter recess, or it would not, at which point Trump would claim disagreement and adjourn Congress himself.
There are a few good reasons this would not work the way Trump wants. The relevant clause connects the power to adjourn Congress to the power to “convene both Houses, or either of them,” on “extraordinary Occasions.” Read as a whole, section 3 states that the president can only adjourn Congress after calling such a session and when it cannot agree on the time of adjournment. The president, in this reading, has no power to adjourn Congress when it is in regular session.
There is another way to read the text as well. Suppose the president’s power to adjourn is separate from his power to call an extraordinary session. Even then, the power to adjourn Congress activates only when the House and Senate disagree as to the time of adjournment, not whether to adjourn. In which case, neither inaction nor an outright refusal to adjourn triggers the president’s power to act. This, it is interesting to note, was President Andrew Jackson’s understanding of his power to adjourn Congress. As he wrote in an 1836 veto message to the Senate, his power is “confined to fixing the adjournment of Congress whose branches have disagreed. The question of adjournment is obviously to be decided by each Congress for itself.”
It is worth taking a moment to explain why this power even exists. “The power to convene Congress on extraordinary occasions is indispensable to the proper operations, and even safety of the government,” writes Story, who placed the convening power in the context of “vigorous measures to repel foreign aggressions, depredations and direct hostilities; to provide adequate means to mitigate, or overcome unexpected calamities” and to “provide for innumerable other exigencies.” Story then describes the adjournment power as “equally indispensable; since it is the only peaceable way of terminating a controversy, which can lead to nothing but distraction in the public councils.”
But this parsing of the text is almost beside the point. The power to unilaterally adjourn Congress and then govern without its input does not exist in the Constitution, regardless of the wording of Article II, Section 3. This is because that power would be an act of sovereign will. In a republic, the people represented assemble in a legislature and only the people represented can adjourn themselves. The Congress is “self-moving and self-dependent,” William Rawle writes in his 1825 commentary, “A View of the Constitution of the United States.” “Although it may be convened by the executive,” he continues, “it cannot be adjourned or dissolved by it.”
It is the power of a sovereign monarch to call and dissolve a representative body at will. To use an example that would have been relevant to the framers of the Constitution, when Charles I dissolved Parliament in 1629 for a third and decisive time — and imposed personal rule on England — he did so on a claim of royal prerogative, extending from divine right. But our Constitution does not affirm divine right. It does not grant royal prerogative. Donald Trump cannot adjourn Congress like a king because the Constitution does not recognize kings or any sovereignty other than that of the people.
Now obviously, this will not stop Trump from trying to assert a power to adjourn Congress and appoint his nominees. And while key senators have voiced their intent to fulfill their constitutional duty, there is still some chance that enough Republicans would roll over and grant Trump his recess. Nonetheless, it is still important that opponents of Trump assert that the power Trump is claiming does not exist, that it is an illegitimate and unconstitutional exercise of authority, and that he would be doing it to install loyalists who will act in his interest, and those of his billionaire donors, and no one else.
The reason it is important to make this point gets to a critical fact about the 2024 presidential election. Donald Trump did not win a mandate for autocracy. He hardly won a mandate at all, despite his claims to the contrary. He didn’t win a majority of votes cast, although he came close, and he carried the critical battleground states by slim margins. Overall, Trump won one of the narrowest victories in American political history.
This election was not a grand public affirmation for his most expansive plans and aggressive schemes. The electorate was as close to evenly divided as is possible (Trump is ahead by less than 2 percentage points in the popular vote) in a system where someone has to win. The marginal Trump voter — that is, the person who put him over the top — wants lower prices and cheaper homes, not chaos, dysfunction and autocratic, strongman government. But there are no real Trump plans to improve life for most Americans.
If there is such a thing as favorable terrain for a fight, this is it. This is the opportunity to weaken Trump and make his administration even less effective than it is already shaping up to be.
The 2024 election was the end of one iteration of the American republic. But the new one is still gestating — still formless, its outlines still unclear. And we, as free and equal citizens, have the capacity to shape it.
Yes, Trump will fight to try to impose his vision of the new world. Yes, he will lay claim to the powers of a monarch. Yes, he will speak as if he has royal prerogative. Yes, he will work to undermine our revolutionary heritage. But there is a large gap between a stated intention and an accomplished fact. And it is within that space that politics happens.
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