Donald Trump’s presidency has been a four-year stress test of America’s constitutional system. Trump’s belligerent governance has weakened the bipartisan fabric – rooted in prudence, decency and comity – that ties our multi-branch system of government together.
At the same time, however, the fundamental pillars of our constitutional order have survived intact – revealing their enduring strength.
Take judicial review, the principle that the judicial branch, as opposed to the executive or legislative branches, makes the final determination regarding constitutional disputes. Supreme Court Chief Justice John Marshall articulated this principle in 1805 in Marbury v. Madison, stating that it “is emphatically the province and duty of the judicial department to say what the law is.”
Judicial review has been an essential rule of American government ever since. And despite Trump’s numerous Twitter attacks on the judiciary – not to mention his interfering in cases involving his friends and demanding indictments of his foes – he has not violated a single court order.
Since his inauguration, Trump has lost in court endlessly. Lower courts invalidated the first two versions of his travel ban and struck down his executive order denying funding to sanctuary cities. The Supreme Court rejected his attempts to rescind DACA and to deprive the LGBT community basic civil rights. And the Court authorized a local prosecutor in New York to seek Trump’s personal financial information.
Despite these and other thundering losses, Trump has obeyed the courts’ rulings. Trump’s uniform compliance with court orders will be on display again, soon enough, when the courts conclusively reject Trump’s inept attempt to overturn the presidential election.
And this highlights another fundamental principle of American government that will pass the Trump stress test: The peaceful transfer of power after an election.
Trump would surely violate this principle, seize power and stay in office if he could. But our constitutional system will not let him. While Republicans in his administration and Congress have largely acquiesced to Trump for the last four years, they will not cross this line and recognize a Trump presidency after Joe Biden’s inauguration.
The Senate, which holds the express constitutional power to remove the president, made this clear before the election. It unanimously declared that “there should be no disruptions by the President or any person in power to overturn the will of the people of the United States.”
There is, quite simply, nothing Trump can do to circumvent the foundational American principle that the peaceful transfer of power follows an election. Trump’s public acceptance of the GSA authorizing formal transition processes indicates that he understands this fact.
Trump has, to be sure, damaged our country in myriad ways and our body politic remains wounded, polarized and dysfunctional. There is, moreover, still time between now and Biden’s inauguration for Trump to cause trouble.
But there’s only so much additional damage he can inflict. The bedrock principles of American government – such as judicial review and the peaceful transfer of power – are, still, enduring safeguards that fundamentally restrain all American presidents. Even Donald Trump.
William Cooper is an attorney who has written for The Wall Street Journal, Baltimore Sun, New York Daily News and USA Today, among others.
