Trump’s Backhoe: A Metaphor for Unconstitutional Demolition
President Donald Trump’s backhoe gouged, slashed and ultimately demolished the East Wing of White House last week, an unauthorized, illegal act and a metaphor for the way in which he has, since January 20, purported to rule, not govern, while shredding the constitutional provisions, norms, and laws that have well served this nation for more than two centuries.
The objection here is not to remodeling the East Wing, though sentiments, historic moments, and traditions urge restraint. Indeed, previous presidents have made significant changes in that part of the White House where First Ladies conducted important business, hosted memorable receptions, and advanced worthy causes. It was in the East Wing that Nancy Reagan launched her “Just Say No” campaign fighting drugs. Betty Ford called the East Wing the “heart” of the White House.
The objection, rather, is to Trump’s disregard of laws that require the president to work in concert with various national planning agencies when remodeling the White House, a national treasure. But Trump’s disdain for federal laws and regulations – like his consistent defiance of constitutional principles, procedures, and processes – after nine months in office, it is painful to say, is old news. As a backhoe, he proceeds as he pleases, tearing down the oaths, structures, and institutions that have confined executive power since George Washington was sworn into office. The “Take Care Clause” in Article II commands the president to “faithfully” execute the laws. For an authoritarian like Trump, however, who has asserted “absolute” power, constitutional commands, like constitutional limitations, are irrelevant.
Trump’s authoritarian presidency has been emboldened by a feckless Republican-controlled Congress: eager to do his bidding; a willing participant in shredding enumeration of powers, separation of powers, and checks and balances; complicit in its surrender of institutional dignity and integrity, and in its own demise, resembling the self-humiliation of the ancient Roman Senate that ceded its power to the executive and marked the end to the Roman Republic. The president lacks constitutional authority to dissolve Congress, but the House of Representatives, under Speaker Mike Johnson, has essentially achieved the result by deciding to shut down “the People’s House,” retreating to the sidelines, aiding and abetting Trump’s usurpation of foundational legislative powers, including authority over spending, appropriations, taxing, and warmaking. It is no overstatement to say that Congress is a shell of the First Branch of government created by the framers of the Constitution.
The list of offenses grows daily. On October 27, the House Oversight Committee fulfilled another long-standing wish of President Trump when it sent a letter to Attorney General Pam Bondi, in which it concluded that the pardons granted by President Joe Biden, signed by autopen, had not been directed by the president and were, therefore, “void.” This roadmap is clear: Biden’s pardons are meaningless. Bondi will enjoy an open lane to prosecute Trump’s “enemies,” including members of the January 6 Committee, to whom Biden wisely granted preemptive pardons in anticipation of Trump’s retribution campaign. It may well be that Trump’s hatred of Biden stems less from the fact that he lost the 2020 election (Trump knows he lost) than from the fact that the preemptive pardons, until now, have thwarted his prosecutorial revenge against committee members.
The theoretical removal of this roadblock rests on a slender reed, but it purports to provide Bondi with a green light to pursue those pardoned by Biden. The question of whether a pardon can be declared “void” will be left to the courts. History teaches that there are only a few, exceptional, grounds for reversing a presidential pardon, but vitiation of a pardon could include fraud, bribery, and the imposition of unconstitutional conditions, in the case of a “conditional pardon.” This possibility requires further discussion, and though it seems far-fetched that a court would overturn pardons issued by Biden’s autopen, who among us could have predicted that the Supreme Court would assert a doctrine that essentially clothes the president in immunity from criminal prosecution?
The GOP-controlled Congress has long since abdicated its constitutional responsibilities, nourishing the entrenchment of an authoritarian administration that has no desire to continue the republican experiment launched in 1776. Indeed, Trump’s own acts could be easily substituted for the colonists’ grievances against King George III that they announced to the world in the Declaration of Independence on July 4, 1776. The oversight committee has just furnished citizens with yet another grievance.
-David Adler