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TRUMP’S CROWN DOESN’T FIT  
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Jamelle Bouie
November 22, 2024
New York Times
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_ Trump will fight to try to impose his vision of the new world. But
there is a large gap between a stated intention and an accomplished
fact. And it is within that space that politics happens. _

, Damon Winter/The New York Times

 

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
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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
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sexual misconduct with a minor at a party. Gaetz has denied any
wrongdoing, and the Justice Department declined to charge him
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year.

Gaetz aside, Trump has let it be known
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he would like to adjourn Congress and install his nominees as recess
appointments, 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
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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
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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
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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
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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
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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 two
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.

_JAMELLE BOUIE became a New York Times Opinion columnist in 2019.
Before that he was the chief political correspondent for Slate
magazine. He is based in Charlottesville, Va., and
Washington. @jbouie [[link removed]]_

_Subscribe to the NEW YORK TIMES
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