Benjamin Wittes and Quinta Jurecic on Lawfare pinpoint a key part of the American governmental system – the Presidential Oath of Office – and what happens when the populace begins to suspect the President is not taking it seriously:
So what does it look like when large numbers of people do not trust the President’s oath and, as a consequence, do not believe he “enter[s] office with a presumption of regularity in his work”? It looks something like what we’re seeing now, in which a wide array of actors simply do not afford deference to presidential actions and words.
Let’s start with the courts. There’s much to argue about in the astonishing flood of judicial opinions that followed Trump’s issuance of his executive order on visas and refugees. For present purposes, the only point is that a very large number of judges around the country behaved in a fashion untouched by deference or any kind of presumption of regularity in the President’s behavior: by our count, at least eight district courts and one circuit court have issued stays or temporary restraining orders against the executive order. Note that they did this in an area of broad statutory grants of power to the president in the face of a claim by the President that he was acting to protect national security. They intervened rapidly. And their lack of deference was, in some cases, proud.
This is a long, interesting post. For example, there’s a good section on how Presidents Bush and Obama respect each, but Bush no longer extends the same respect to Trump: a point for conservatives to consider. And if you’re still thinking that leaks from government sources, in this instance, are unethical, well, they don’t agree:
But if a staffer in a federal agency doesn’t believe in the integrity of the president’s oath, that mistrust breaks key bonds that tie that staffer to the executive will. After all, the reason to follow orders in the executive branch is that the president is both elected by the people, and thus represents the popular will, and has sworn an oath to faithfully execute the laws. If you don’t believe that oath and you don’t believe that he is necessarily pursuing the public’s interest, why follow orders and carry out his policy? Such a staffer may feel no compunction about telling someone in the press about policy discussions he doesn’t believe are being undertaken in a sincere effort to “faithfully execute” the functions of the executive branch and to “preserve, protect and defend” the Constitution. He may actively believe that his own oath of office requires a certain degree of undermining of those policy processes, both with forms of internal pushback and resistance and with public exposure. Or, less nobly, he may simply feel freed from normal bonds of loyalty and hierarchical discipline and thus able to embarrass a hated boss or scuttle policy changes he doesn’t like.
They make a lot of sense. It’s worth remembering that we are a Nation of Law, not of Men (nor of Gods!), which leads to the old aphorism about how all are equal in the eyes of the law. Those who take oaths as officers of the Nation take it to the Nation, not to the President. He (or she) may be responsible for making big decisions, but in the end he’s just another officer of the Nation, with delineated and delimited powers, and a defined lifetime.
Not a temporary King or CEO.
And that leads off to other thoughts, once again, about how the different sectors of society have different goals and different methods, and that this post reminds me of how true this remains. But I shan’t pursue the rabbit…
