Constitution Day is this week—September 17 officially, September 16 as it’s being celebrated at schools across America.
Which is ironic, because rarely has the Constitution been so flagrantly flouted as in the annus horribilis of 2016. There’s no shortage of unconstitutional acts to choose from, depending on your point of view. Conservatives and libertarians are still litigating the constitutionality of Obamacare, for example, although Article III of the Constitution grants that power to the Supreme Court. Liberals, meanwhile, have begun to wonder whether there are any limits on when the government can spy on all of us.
And none of us knows whether the Obama administration’s immigration actions are constitutional, because the short-staffed Supreme Court was too broken to decide.
But for my money, there are three constitutional howlers so outrageous as to merit special attention on this Constitution Day: the Obama wars, the Supreme Court stalemate, and almost everything Donald Trump says.
1. War Without War
Did you know that Article One, Section Eight of the Constitution states that Congress has the power to declare war? Did you know that the last time it did so was during World War II? What about all those other wars since then: Korea, Vietnam, the Gulf Wars (plural!), Afghanistan—did they never happen?
Well, not constitutionally they didn’t—there never was a formal “Declaration of War,” and since there wasn’t, there was never really any war. (Tell that to the veterans, the fallen, the enemy combatants, and the civilian casualties from Pusan to Peshawar.)
But in most cases, Congress at least authorized the use of force—including the second Gulf War, which Hillary Clinton and Donald Trump supported, before they were against it, and the war in Afghanistan.
Both of those wars are over, in case you were confused—Iraq on December 15, 2011, and Afghanistan on December 28, 2014. Those U.S. soldiers still on the ground, the warplanes, the battles against ISIS—none of that is really war, you see. Nor were the U.S.’s adventures in Libya. None of those activities have been authorized by Congress, notwithstanding what the constitution says.
Of course, war is different these days. One no longer issues Letters of Marque and Reprisal, and one no longer formally declares war either. Indeed, Congress recognized the effective nullity of Article I, Section 8, back in 1973, when it passed the War Powers Resolution, meant to require presidents to obtain congressional approval within 90 days of engagement.
Then again, the War Powers Act (as it’s known) may itself be unconstitutional, and is basically never enforced by the Supreme Court, which has noticed that the party complaining of violations always seems to be the one not holding the White House at the moment. Liberals and conservatives alike recognize that invoking it is basically a political ploy.
As a result, we’ve grown used to war without “war.” After all, what is a “war on terror,” really? The Obama administration’s use of drone warfare, for example, is now well-documented. Is it part of a declared war? No. Part of an undeclared but congressionally authorized war? No. Is it constitutional? Well, that depends what the meaning of the word “is” is.
2. Oaths without Actions
What’s worse than undeclared war? Unfulfilled oaths of office.
The Appointments Clause of the U.S. Constitution, Article II, Section 2, says that “The president shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court.”
In 2016, this clause has been violated like never before in U.S. history. For longer than any other time in the history of our country, a seat on the Supreme Court has remained vacant while a fully qualified candidate has been denied even a hearing by the U.S. Senate. Whatever consequences this unprecedented inaction has had on the dispensation of justice, it is blatantly unconstitutional.
“Shall,” in constitutional language, means “must.” It means that the president must nominate judges, and the president and Senate must work together to get them appointed. While, of course, the Senate can set its own rules as to how to do so, it must do so.
Which it hasn’t.
September 16 isn’t just Constitution Day, after all—it’s also the six-month anniversary of Merrick Garland’s nomination to the Supreme Court. That isn’t just a record—it blows away the record, previously held by Louis Brandeis, who waited 125 days after he was nominated by Woodrow Wilson. And he, of course, got hearings, a vote, and a confirmation.
Republican spin doctors have sold America the line that this is business as usual— that Democrats have stalled nominees in the past, that it’s an election year, that the people should decide. That’s a pack of lies. No nominee has been stalled like this, no informal custom has ever stopped a nomination of someone this early in an election year, and the people decided already, when they elected President Obama to a full eight years in officenot seven and a quarter.
And it’s not just Judge Garland. Over the last year and a half, the Senate has confirmed 17 lifetime-appointment judges. In the same period in 2007-08, the Democrat-led Senate confirmed 45. This is completely unprecedented, and has caused a judicial emergency throughout the system.
Every Republican Senator who has refused to move forward with a bona fide confirmation process has violated his or her oath of office, and the U.S. Constitution. Their actions may or may not determine the outcome of the election, but they will go down in history as among the most outrageous constitutional violations in history.
3. That is, unless Trump becomes president.
Although he hasn’t done anything unconstitutional yet—after all, he’s not yet in office—I couldn’t observe Constitution Day without noting how many blatantly unconstitutional, criminal actions Donald Trump has promised to undertake.
If he puts into practice his belief that Mexican Americans cannot fairly discharge their duties (as judges, as federal employees, as whatever), if he acts on his promise to bring back open racial profiling, he would violate the Equal Protection Clause.
If his administration singles out Muslims based on their religion, if it implements Trump’s statement that all students must “salute the flag,” it would violate the First Amendment.
If he builds the transit camps and other infrastructure necessary to deport eleven million undocumented immigrants, if he indeed deports people merely accused but not convicted of crimes, he would violate the Due Process Clause.
And of course, if he follows through on promises to bomb the families of terrorists and torture people in ways “worse than waterboarding,” he would probably not violate the Constitution, but he would be a war criminal, which probably counts for something.
Good thing the Supreme Court will be there to check Donald Trump’s unconstitutional abuses of power.