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Feldman: Trump is testing our constitutional system. It’s doing fine.
key = "I’m tempted to suggest that we try to manage our anxiety"

from https://www.thedailynewsonline.com/opinion/feldman-trump-is-testing-our-constitutional-system-it-s-doing-fine/article_98a14780-e482-11ef-851c-f3d0e1745115.html

Feldman: Trump is testing our constitutional system. It’s doing fine
By Noah Feldman Bloomberg Opinion 8 hrs ago

President Donald Trump signs executive orders in the Oval Office of the
White House in Washington on January 23.

The Trump administration is subjecting the U.S. constitutional system to
a stress test. We’re on the treadmill, with instruments recording
everything that’s happening.

Nearly every day since taking office, President Donald Trump has done
something unlawful that makes the treadmill go a little faster. He has purported to ban birthright citizenship; fired 17 inspectors general;
briefly frozen federal spending; and most recently, taken steps to
shutter the U.S. Agency for International Development.

That’s not counting the tariffs imposed on Mexico, Canada and China,
which would probably-but-not-definitely be upheld by the courts as a
lawful exercise of power delegated by Congress.

When these stressors are introduced into the system, the courts swing
into action and block Trump’s executive overreach. Congress protests —
or is supposed to — that the president can’t override federal laws that direct spending or establish agencies. If those things happen, the
system equilibrates. Instead of degrading, the stress test shows the
system works and what might need some fixing.

How long will the stress test continue? No one knows for sure. It’s been
two weeks and Trump still seems able to come up with a
headline-capturing power grab every day or two. What is certain is that
the president can’t sustain this rhythm forever. At some point,
Americans will demand that he start doing his main job, which is making
the executive branch function.

If you’re watching Trump closely, as I am, your heart rate has probably
been going up. Mine certainly has. That’s because the big question for
our democracy right now is the same one that arises during any stress
test: Will our heart hold out?

My bet is on survival. So far, Trump’s latest version of constitutional quasi-chaos hasn’t swamped the system. I’m tempted to suggest that we
try to manage our anxiety, even as we keep running harder. Anxiety,
after all, can also raise your heart rate.

Consider what’s happened so far. The president can’t change the Constitution, so Trump’s executive order claiming to roll back
birthright citizenship is beyond his power. A court has already said so, blocking the order from going into effect. Trump could appeal all the
way to the Supreme Court, but it’s not going to make any difference. The
high court is not going to announce a brand-new, made-up interpretation
of the 14th Amendment.

Should the fired inspectors general choose to sue for their jobs back,
they would likely win on the grounds that the law requires the president
to inform Congress before taking such action. That would be nice for the
rule of law. But they might choose not to sue since all Trump would have
to do is fire them again, this time giving Congress proper notice.

As for the ill-fated spending freeze, which also could have been done
legally if Trump had given notice to Congress, a court blocked it within
hours. Trump then folded and lifted it.

That brings us to USAID, a federal agency responsible for delivering humanitarian aid around the world. Trump can’t unilaterally shut down a federal agency created by Congress, as former senior White House lawyer
Tess Bridgeman has pointed out. Money appropriated by Congress for
specific purposes must be spent for those purposes under the Impoundment
Act. Civil service employees can sometimes be let go from their jobs
when there is a reorganization leading to a reduction in force; but
that’s not what’s happened here — at least so far. If Trump doesn’t follow the law regarding USAID, there will be more lawsuits, which he
will lose.

Those taking notice of all this systematic (and unnecessary) illegality
are understandably concerned that Trump might ignore court orders. That
would generally count as a constitutional crisis — the real thing, not
the stress test.

Yet Trump, who did not ignore court orders in his first term, is
unlikely to defy a judicial decision. The Supreme Court has six
conservatives, three of them Trump appointees. The single worst thing he
could do to alienate the justices would be to ignore a court order. No
matter how conservative the justices might be, their primary identity
comes from their role as interpreters of the Constitution and laws. They
might tolerate a lot from Trump, but they won’t tolerate direct defiance
of the authority of the judiciary.

Relying on Trump to act rationally might seem like a poor idea.
Nevertheless, it’s worth remembering that the flurry of the last two
weeks is intended to make headlines. Fear for the system can be combined
with serious worries about the effects of Trump’s policies — all of
which leads to panic and more headlines. For now, let’s take the stress
test one burst at a time, and try to keep breathing.

_____

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at
Harvard University, he is author, most recently, of “To Be a Jew Today:
A New Guide to God, Israel, and the Jewish People.”

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