[or, How I learned to stop worrying and love the Trump Presidency]
One of the greatest blessing for the Trump Presidency is that it’s exposing the many shortcomings of the current US system of governance. One can hope that a different president might not commit such abuses (or take advantage of the loopholes in the system), but maybe the country would be better off in the long run if we actually took the time to address these issues and ‘reform the system.’
System loopholes/blind-spots and short-comings that President Trump has abused so far include:
- Presidential Candidates Tax Returns – President Trump has refused to release his personal tax-returns as a candidate (or as the President).
[Not at all required under the law, and only started 40 years ago voluntarily. But knowing the taxes of any presidential candidate is essential in assessing any potential conflicts of interest.]
Action: A law (or FEC regulations?) requiring the mandatory release of the personal tax-returns of the previous 10-15 years by all presidential candidates.
- Electoral Collage vs. Popular Vote – President Trump won the 2016 electoral college but lost the popular vote.
[The US Constitution very clearly states that the winner of the Presidential election is the candidate with the majority of the Electoral College votes. The popular vote only matters in determining which candidate won a particular state, as all states award their Electoral College votes on the bases of the popular vote.
This of course was not always the case. Article II, Section 1, Clause 2 of the Constitution dictates that the manner for choosing electors is to be determined by each State, and not by the federal government. In the beginning, States selected their electors directly, before all switching to using the popular vote by the mid 1800’s.
In particular, since 1824, when the popular vote started to be counted, there have been 48 presidential elections. Out of those 48, only 4 times the winner of the Electoral College did not also win the popular vote. Two of these 4 times were in the 1800’s, and other 2 were after 2000! In all 4 times, the official winner of the Presidential election was a Republican!!]
Action: A Constitutional Amendment, that will either permanently replace the Electoral College with the popular vote or require that a candidate for President win both the electoral collage and the popular vote (with a run-off election in case of a split result).
Appointments & Staff:
- Vetting of Presidential nominees by the Office of Government Ethics – President Trumps nomination process has been full of questionable candidates, with one of the highest rates of withdrawal in modern history.
[In order to avoid conflicts of interest by executive branch officers, the Office of Government Ethics (codified into law – see Ethics in Government Act of 1978, 5 U.S.C Appendix-Ethics) requires the mandatory, public disclosure of financial and employment history of public officials and their immediate families.
Therefore, the public needs to know past financial and employment history of Presidential appointees for public office, from Cabinet and sub-Cabinet candidates to other White House officials.]
Action: Strengthen the Ethics in Government Act to require that all Presidential nominations for any position must first pass higher standards of scrutiny (administered by the Office of Governmental Ethics) before they can be formally submitted for Senate confirmation (or hired – if its not a Senate confirmable position).
- First Degree Relatives Working in the White House – President Trump has appointed a daughter and a son-in-law in prominent working position in the White House, with the expectation to run parts of US foreign policy (Israel-Palestine peace talks) or to advance domestic legislation (reform the criminal justice system).
[This is not unprecedented! As advisors, the President should be allowed to use anyone they want. As official government personnel, then they should have to pass the same ethical and security standards like other presidential appointees.]
Action: Apply Ethics in Government Act (and security clearance requirements) to any family member that engages in official government work (whether they are getting paid or not).
- Judicial Nominations (Supreme Court and other lower court Judges) – The Trump administration nominated a number of individuals for judicial positions that the Senate rejected (or they had to withdraw), due to considerations of being ‘unqualified.’
[Article II, Section 2, of the Constitution, places no pre-qualifying requirement on judicial nominations. Therefore, under the Constitution, as long as the Senate is willing to confirm anyone the President nominates, we can get individuals as judges who might not be qualified (intellectually, subject-matter, or ethically – due to conflicts of interest).
How long will it take in our polarized and partisan society for the Senate to actually confirm unqualified Presidential nominations for judicial appointments, that are for life?]
Action: A Constitutional Amendment to require for some pre-qualifying requirements for judicial nominations that are for life (like: age, education, years of legal experience, or conflict of interest considerations).
- Executive Orders – President Trump, like so many other presidents in the past, used executive orders to deal with the absence of Congressional legislative action, or the vagueness of current laws.
[The US Constitution does not have a provision that explicitly permits the use of executive orders. Article II, Section 3, of the Constitution broadly states that the President “shall take Care that the Laws be faithfully executed.” Therefore, the President uses ‘executive orders’ to best enforce laws passed by Congress, or regulations issues by the government, by accordingly managing the resources and staff of the executive branch.]
Action: A law that limits the reach of Executive Orders to the White House and the immediate staff of the President’s office. Everything else should be in the form of a ‘regulations’ which has to go through a certain process and is subject to Congressional review.
- Withdrawal from International Treaties/Agreements – Since coming into office, President Trump has withdrawn the US from four major international agreements negotiated and signed by previous administrations and threatened to withdraw from a fifth one (NAFTA) if it was not re-negotiated (USMCA). In particular, during the Trump presidency the US withdrew from:
- the Transpacific Partnership Agreement (TPP) on January 23, 2017,
- the 2015 Paris Agreement (part of the UN Framework Convention on Climate Change UNFCCC) on June 1, 2017 (but effective on November 4, 2020),
- the Joint Comprehensive Plan of Action (JCPOA – the Iran Nuclear deal) on May 8, 2018,
- the Intermediate-Range Nuclear Forces Treaty (INF Treaty) on August 2, 2019.
[Under the US Constitution, it takes a 2/3rd Senate majority to ratify a treaty, and yet in some cases (because it is allowed by the law passed by Congress to implement and fund such treaties) withdrawal from such a treaty only requires Presidential action.]
Action: A law (or even a Constitutional Amendment) that requires that withdrawal from any international agreements (or treaty) ratified by the US (approved by Senate and House and signed by the President), require the consent of Congress as well (especially if it originally required a 2/3rd majority in the Senate).
- Unilateral imposition of Tariffs by the President – President Trump imposed tariffs on specific products imported from China, Canada, Mexico, and the EU, and also tariffs targeting general imports from China on four additional occasions.
[Under the US Constitutional, the power to impose tariffs (like taxes) resides with Congress. Yet, once again, Congress can and has delegated the authority to the President to unilaterally impose tariffs, by either using the self-initiating investigation proceedings of Section 301 of the U.S. Trade Act of 1974 (19 U.S.C. § 2411), or the 1977 International Emergency Economic Powers Act (50 U.S.C. Ch. 35 § 1701), which gives the President authority to regulate commerce during a national emergency (as President Trump threatened he might do with respect to imports from China).
However, imports into this country have a wide effect on a variety of industries, the labor market, and the whole economy. A decision to impose tariffs should be subject to a proper process: review/investigation by a designated regulatory authority (like in cases of dumping and trade remedy relief).]
Action: A law (or amendments to current laws) that remove Presidential discretion (and legislative delegation) in the final decision on whether to impost tariffs on imports. The President can and should be able to request a review into such a matter, but the decision must be based on an independent “legislative” process (like a regulatory commission).
- National Parks – President Trump removes land from national parks and open it to natural resources exploration and exploitation.
[The Antiquities Act of 1906 (54 U.S.C. Ch. 3203 §§ 320301) grants the President the unregulated prerogative to unilaterally designate a track of land (or sea) as a ‘national parks’ (which comes with environmental, resource, cultural protections)… but also allows a President to remove land from a national park.]
Action: Amend the Antiquities Act to prevent such unilateral action by the President. A solution could be to treat land for national parks like Presidential appointments (subject to the advice and consent of the Senate – but both for creating a national park and for removing land from one).
- Emergency Powers – President Trump threatened to use ‘Emergency Powers’ to deal with unfair trade competition from China and did use ‘Emergency Powers’ to justify diverting military funding to build part of a wall along the US-Mexico border (which was later overturned by federal courts).
[The US Constitution makes no references to ‘emergency powers.’ Instead, Congress has delegated to the President “enhanced executive powers” in case of a national emergency (defined in the National Emergencies Act of 1976 – 50 U.S.C § 160).
In the context of the 1977 International Emergency Economic Powers Act (IEEPA), once the President declares a national emergency under the IEEPA Congress can only override such a declaration with a veto-proof 2/3rd majority (due to Supreme Court application of the Chadha case.]
Action: A Constitutional Amendment, that returns to Congress the power to declare a ‘national emergency’ powers’ which then empowers the Executive to perform certain tasks, and also allows Congress to end such declaration (without the need for Presidential signature/veto).
- The Decennial Census Process – President Trumps tried to influence the process with his appointment for Director of the Census Bureau, and the inclusion of controversial questions on citizenship.
[The decennial US Census is mandated by Article I, Section 2 of the US Constitution, and its integrity and objectivity cannot be overstated. Such an important process, that has such deep implications for the function of the republic, must not be subject to political interference.]
Action: A Constitutional Amendment that places the administration and execution of the Census on an independent regulatory commission.
- Acting Cabinet Secretaries – President Trump has appointed individuals on an ‘acting capacity’ thus bypassing the Constitutional requirement for advice and consent from the Senate.
[According to the 1998 Federal Vacancies Reform Act (5 U.S.C. 3345-3349) if an appointed position for an executive agency of the government becomes vacant, there are three ways to fill such vacancy. One way allows for ‘the first assistant to the office’ to become the acting officer and another way for the president to select a senior ‘office or employ’ of the agency (although these might not be available options when it involves a ‘principle officer’ – cabinet secretary). A third way is what President Trump did often, by appointing other previously confirmed appointed officials who have been through the advice and consent process.
All three ways have their challenges, and President Trump has pushed them to their limits, especially with his controversial appointment of Ken Cuccinelli as acting Director of U.S. Citizenship and Immigration Services, by creating a new position of ‘Principle Deputy Director.’]
Action: Amend existing legislation regarding Presidential appointments and reduce the Senate confirmable position to only first tear (Secretaries) and second tear (Assistant Secretaries). Every other position should be a civil service position, subject to a proper application and vetting process (covered internally by acting promotions).
- The Cabinet, and the 25th Amendment – The 25th Amendment to the Constitution allow for the removal of the President by the Vice-President and the Cabinet, however the Constitution does not define anywhere who makes up the Cabinet.
[For the first time in modern history, due to his often erratic and questionable behavior, people have challenged the mental capacity of a seating President. Although the Constitution provides for a mechanism to remove a President who is not capable of discharging his duties, it hinges on a vote from ‘the Cabinet’… which is not defined anywhere in the Constitution, or in a subsequent statute.]
Action: A Constitutional Amendment that defines the composition of the Cabinet, for purposes of removing the President under the 25th Amendment.
- The Emolument Clauses – President Trump has been criticized for enriching himself while in office, in a way that violates the US Constitution.
[In particular, both Article I, Section 9, Clause 8 & Article II, Section 1, Clause 7 prohibit the President from receiving any kind of benefit from a foreign State or from the US government or from a state government.
Therefore, every time a foreign government or the US government uses services (like paying for hotel rooms) that are still under the control of Mr. Trump, he is in violation of the Emolument clauses of the Constitution.
Action: Impeach him!!! Or a Constitutional Amendment that requires Presidents to put all their assets in a blind trust administered by an independent entity, for the duration of their terms in office.
- Independence of Justice Department & the Attorney General – President Trump has tried to use the Justice Department to protect and defend the presidency and by extension himself.
[The Constitution establishes a unitary executive branch under the leadership and control of one President, and other officers/departments as created by Congress. The Constitution does not make any special exceptions about the Justice Department, nor does it require it to be somehow independent and not under the control and direction of the President. Especially since the President is charged with ‘enforcing the law.’
However, as we all recognize now, the Justice Department, more than any other government department, must be independent of politics in order to enforce the law. Prosecution or defense of government actions cannot be based on political consideration, Republican or Democrat!
Therefore, the Justice Department might benefit from a reorganization that separates the ‘enforcement’ side (FBI, DEA, ATF) from the prosecution side (attorneys general) from the ‘investigative’ side (Inspector General) and from the ‘constitutional law’ side (Solicitor General).
Furthermore, its independence can be guaranteed by raising the threshold for Senate consent, thus requiring bipartisan support for either Republican or Democrat nominees.]
Action: Reorganized the Department of Justice to four co-equal parts, whose heads are confirmed by a 2/3rd majority of the Senate. The four parts should be – Attorney General (in charge of all the district attorneys – prosecute the law), Enforcement General (in charge of FBI, DEA, ATF, etc – enforce the law), Solicitor General (in charge of appeals and constitutional litigation), and Inspector General (with the power to ‘constantly’ investigate the actions of government officials – no need for a special prosecutor).
- Cabinet Secretaries in Contempt of Congress – A number of President Trumps cabinet members have refused to testify at Congressional hearings or have refused to produce documents at the request of Congressional committees.
[Congressional Subpoena Rules allow Congressional Committees to compel the testimony (and the production of written materials) of government officials. However, courts have chosen not to hear cases prosecuting members of the executive found in “contempt of Congress” for not appearing to testify or submitting requested documents (because that is a ‘political questions,’ unsuitable for judicial remedies).
Action: Pass a law, or even a Constitutional Amendment, that requires government officials to comply with all requests for testimony or information (relevant to the legislative work) from Congressional Committees (thus removing any ambiguity on the part of courts of the legality of prosecuting violators of such a law or Constitutional Amendment).
- Use of nuclear weapons by the President – President Trump has threatened to use nuclear weapons, in the context of international relations, as many other Presidents have done in the past.
[Technically, the President of the US is the only person who can order the use of nuclear weapons, with the requirement that the Secretary of Defense verify that the order is authentic (given by the ‘actual’ President). No one can exercise veto powers over the Presidents order to use nuclear weapons.
This approach made perfect sense during the cold war, when the implication was that the Soviet Union might lunch a preemptive attach of thousands of missiles, where we might be caught unprepared and the President might have to order a counterattack at an instant. With this possibility having been removed since the collapse of the Soviet Union, if the US will ever need to use nuclear weapons it would not require a split-moment decision.]
Action: A Constitutional Amendment that requires the consent of both the President and the Vice-President in the unilateral preemptive use of nuclear weapons by the US (retaliation might be possible with just an order from the President, but preemptive attach will require both the President and the Vice-President).