December 15, 2024
Letters to the Editor
The Washington Post
Re: “Trump’s plan on executive actions: See you in court.” (Front page article by Isaac Arnsdorf and Jeff Stein, December 15, 2024)
To the Editor:
Contrary to President-elect Donald Trump and his constitutionally illiterate advisors, Article II, section 3, clause 4, requires the President to “take care that the laws be faithfully executed.” (Take Care Clause). The Constitution’s presidential oath of office requires fidelity to that constitutional mandate. Thus, the policy of the U.S. Department of Justice is to defend congressional enactments unless flagrantly unconstitutional under prevailing Supreme Court jurisprudence, for example, a statute criminalizing any criticism of Congress.
President Trump would violate the Take Care Clause by flouting the Impoundment Control Act of 1974 or birthright citizenship bestowed by the Fourteenth Amendment because both are inarguably constitutional under prevailing constitutional law. James Madison, father of the Constitution, elaborated that the congressional power of the purse was limitless in Federalist 58: “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” The Supreme Court thus rejected presidential impoundment authority in Train v. City of New York (1975). Birthright citizenship was also affirmed by the Supreme Court in United States v. Wong Kim Ark (1898), quoting Justice Story: “Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.”
Under Mr. Trump’s Humpty Dumpty version of the Constitution—it means whatever Mr. Trump wants it to mean--Trump could declare a national emergency, dissolve Congress and rule by decree denying the Supreme Court the power of judicial review!
Shouldn’t the United States Senate extract a pledge under oath from Attorney General-designate Pam Bondi that she will leave the Department’s policy concerning the Take Care Clause undisturbed?
Sincerely,
Bruce Fein, associate deputy attorney general under President Reagan, 1981-83, and author of Constitutional Peril: The Life and Death Struggle for the Constitution and Democracy
300 New Jersey Avenue, N.W., Suite 300
Washington, D.C. 20001
Phone: 202-465-8728; 703-963-4968 (M)
Email: bruce@feinpoints.com