We are now in full-fledged constitutional crisis

By Office of the President of the United States — @realDonaldTrump on Twitter, Public Domain, https://commons.wikimedia.org/w/index.php?curid=57074297

President Trump’s ill-fated nominee for the Federal Reserve Board of Governors Stephen Moore once said that he is “not a big believer in democracy,” and that “capitalism is a lot more important than democracy.”

The words may be shocking, but we should actually be grateful to Moore for his honesty. In truth, this attitude is not exceptional among Republican leaders. In fact, I would suggest that this is their central philosophy.

We hear a lot from Trump supporters about their support of “liberty” and “America.” But just what are those things? I would argue that they are defined by our Constitution. The President, after all, upon taking office, swears an oath “to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Similarly, all other federal employees, including those in the military, must swear an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.”

There is no oath to protect the territory of the United States. There is not even an oath to protect the people of the United States. The central principle behind our nation is our Constitution and the body of laws that flow from it.

I frequently hear from Trump supporters who dispute the points I make in my posts. Interestingly, political scientists David Barker and Morgan Marietta today outlined how two people with different political views can look at a common set of facts and come to completely different conclusions. So I get that Trump supporters may look at certain facts differently from how I view them.

But at this point, we have an issue that ends this dispute. You can no longer be a supporter of Trump and a supporter of democracy, or at least the rule of law. Let’s at least be honest. Just as Stephen Moore said that capitalism is more important than democracy, if you continue to support Trump you must admit that Trump is more important to you than democracy.

Consider the following. On April 3, the chairman of the House Ways and Means Committee Richard Neal (D-MA) sent a letter to the Commissioner of the IRS requesting copies of tax returns filed by Trump himself and associated entities. In general, the law makes it clear that tax returns shall be private (see USCode title 26, section 6103(a)). However, the law also carves out a few explicit exceptions to that general rule. According to USCode title 26, section 6103(f)(1),

Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.

I cited the entire section here. There is no ambiguity. The words “shall furnish” are clear, leaving no room for maneuver.

Trump supporters may not like that this is the law. But in fact, it is the law. There is no law that counters this law. This law was passed pursuant to the process and authority established in the Constitution. If the Republicans had wanted to change the law, they could have when they had control of both Chambers of Congress, but now they don’t, so they have to comply with the law until it is changed. Not to do so breaches their duty to “support and defend the Constitution.”

Treasury Secretary Steven Mnuchin, a Trump appointee under whose authority the IRS falls, sent a letter to Neal responding that the Administration would not comply with this request since it “lacks a legitimate legislative purpose.” The law, however, does not provide a “legitimate legislative purpose” exception. The words “shall furnish” are unequivocal.

If the law is to be followed, then, Mnuchin must turn over the tax returns. No subpoena is needed. No “legitimate legislative purpose” is needed. At the request of the chairman, the commissioner “shall furnish” the requested tax returns. They can request that the tax returns be provided in a closed session to keep certain details private. But they cannot refuse to turn over the returns.

Not that it matters, but Republicans have previously demanded and received tax returns from Democratic administrations when they controlled the House. And indeed, those requests were for political purposes. One could argue that what is good for the goose is good for the gander. But this post is specifically about the rule of law and how it is being trashed by this administration.

I often wondered how an advanced, civilized country like Germany could fall into Nazism, turning its back on the rule of law in favor of a cult of personality centered on Adolf Hitler. Trump supporters have accused me of hyperbole when I make such comparisons. But yet here we are. Perfectly reasonable people who claim to support our democratic institutions are supporting Trump’s refusal to comply with the Congressional request.

But the law is clear. You cannot both support Trump’s position and support democracy. The line has now been drawn.

If you liked this post, you might also like:

Mike is an Assistant Professor of Management for Legal and Ethical Studies at Oakland U. Mike combines his scholarship with practical experience in politics.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store