Substance, procedure, and the current constitutional crisis

Sen. Curtis (Utah) went on Face the Nation and said this:

Well, what we're seeing play out is this wrestle between the three branches of government. We'll find out. And this is the beauty of the system--* Well, listen, I believe in the Constitution, right? I believe this is how we test the Constitution. And people have said, oh, this is a constitutional crisis. And I say, exactly the opposite. It's proving to work. We have the courts playing it. We have Congress who will play in. We have the ability, I think we hold a lot of responsibility for what's happening right now. We could solve the budget as Congress. We could solve the border, and we haven't. And both parties, when Congress doesn't do their job in the White House, have a tendency to try to solve it. Let's let this play out by the Constitution and- and then Congress, let's step up, right? We need to- I'll be the first to say we. This is a problem the Congress is, in many cases, has given the American people.

He has been taking some crap in some quarters, especially for the part about "test[ing] the Constitution. "No," they respond, "we follow the Constitution, we do not test it." But while "test" is a bad word choice, I am not sure he is wrong.

The retort of "we follow the Constitution" begs the question because no one knows what the Constitution means and no one has the final word on the meaning of the Constitution. Trump and his minions (presumably) believe what they are doing is lawful and pursue this course on that belief; other constitutional actors (namely the courts) express their views, but that plays out within a somewhat lengthy process. Alternatively, Trump and his minions know what they are doing is unlawful (or at least do not care); other constitutional actors (again, the courts) may bring them to heel, but that plays out within a somewhat lengthy process.

Ultimately, Curtis gave a procedural response to a substantive question. Host Margaret Brennan (who is so far out of her depth) asked whether Curtis had a point of view of the wisdom of everything Trump is doing and whether he is pursuing a good course of governance, a question about the substance of his actions; Curtis responded with a procedural answer--the Executive acts, other branches respond, and we get an answer to the immediate question. But that tells us nothing about whether he--a member of the Senate and a constitutional actor--believes the President should do th4ese things. He punted to "the courts will tell us whether it is valid" as "the beauty of our system." (Seemingly without recognizing Congress as a constitutional actor and his role in that process).

This distinction among constitutional procedure, constitutional substance, and policy substance confounds most discussions. Take birthright citizenship. The President did not "act like a king" in issuing the EO if he believes that Kim Wong Ark is wrong or distinguishable; he acted on his independent constitutional judgment, which can be challenged in the other branches. The real issue is the substantive--whether his view (and the views of conservative scholars rallying to his defense) is defensible. Or take firing military leaders or pardoning J6 insurrectionists or appointing nut jobs to high offices. This is not a matter of constitutional procedure or constitutional substance--no one doubts the Commander in Chief can fire who he wants to and no one doubts the pardon power; it is pure policy (or norms, if you like) and how we believe leaders should act in office.* And this is actually where Congress--a rival policymaking body--can but fails to act.

[*] Sandy Levinson might say it reflects constitutional substance by exposing the many defects in the Constitution. Fair enough. But we are stuck with the Constitution we have.

Interviewers and commentators should maintain these distinctions. If Donald Trump is acting like a king, it is not necessarily because he has exceeded his constitutional powers-the President has quite broad, and ill-defined, powers. It is that he is governing in an objectionable way that maximizes his power towards bad ends. So the question for congressional Republicans should be "Do you think it is a good idea to have Dan Bongino as Deputy FBI Director or a statutorily unqualified person as Chair of JCOS or to eliminate top military lawyers or to eliminate birthright citizenship." The question should not be "can the President do this," because the answer is always either "yes" or "we'll let the courts decide."