Jonah Patel
Despite the United States Constitution being one of the most scrutinized documents in the country's history, there remain ethical loopholes that have come to light in recent years, particularly during the Trump administration. Trump's stance on the constitution and his presidential powers has been described as arrogant, with critics pointing to his refusal to be held accountable to traditional standards, his lack of transparency, and his questionable dealings with foreign entities. Trump has also been accused of usurping the powers of Congress and disregarding the rule of law, with his administration described as a threat to Americans and America itself. One of the most contentious issues is whether a president can pardon themselves, with Trump claiming he has the absolute power to do so, a loophole that, if true, would have profound implications for the balance of power in the US political system.
| Characteristics | Values |
|---|---|
| Presidential pardon | Trump claims he has the "absolute" power to pardon himself |
| Refusal to release tax returns or medical records | Trump refuses to release his tax returns or medical records, which could contain information about his personal dealings with foreign entities |
| Contradictory explanations of personal dealings with foreign entities | Trump offers mixed and contradictory explanations of his personal dealings with foreign entities, including Russia |
| Ignoring Supreme Court orders | Trump has indicated he will ignore the Supreme Court, raising questions about the consequences |
| Starting or shutting down federal investigations | Trump claims he can start or shut down any federal investigation, even into his own conduct |
| Mass deportations without due process | Trump has deported immigrants without due process, claiming authority under the Alien Enemies Act, which does not apply |
| Usurping Congressional powers | Trump has usurped the powers of Congress, with his congressional party leaders refusing to hold him accountable |
| Unchecked presidential power | Trump's supporters in Congress have failed to check his power, allowing him to act with impunity |
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What You'll Learn
Presidential pardons and self-pardoning
The U.S. Constitution grants the President the power to "grant Reprieves and Pardons for Offenses against the United States". This power is not subject to legislative control, and Congress cannot limit its effect or exclude any class of offenders. However, this power does not extend to state criminal offenses, civil liabilities, or cases of impeachment.
The Constitution does not explicitly address whether a president can pardon themselves, and this remains an unresolved issue. Some argue that a president can pardon themselves because Article II does not explicitly prohibit it. However, others contend that self-pardoning would violate several constitutional principles and precedents. For instance, the ancient legal maxim that "no one may be a judge in his or her own case", which is well-known to the Framers, would be flouted by self-pardoning. Similarly, self-pardoning would violate the due process principle articulated by James Madison, which states that "no man is allowed to be a judge in his own case, because his interest would certainly bias his judgment". Furthermore, self-pardoning would place the president above the law, contradicting the central constitutional principle that the U.S. is "a government of laws, not of men".
In 1974, during the Watergate scandal, President Richard Nixon's lawyer suggested that a self-pardon would be legal. However, the Office of Legal Counsel (OLC) issued an opinion concluding that a president may not self-pardon under the fundamental rule that "no one may be a judge in his own case". The OLC memo outlined a scenario in which the president could temporarily transfer power to the vice president, who could then pardon the president. Nevertheless, this memo lacks legal analysis and is not considered authoritative.
More recently, former President Donald Trump has claimed that he has the "'absolute' or "'complete' power to pardon himself, and he consulted with advisors on the legal authority to do so during the Russia probe. Trump's statements and actions have prompted discussions about the ethical and legal implications of presidential self-pardoning. Some states, anticipating the possibility of Trump pardoning himself, have enacted legislation to permit state prosecutions in cases where a presidential pardon has been granted for federal crimes that overlap with state or local crimes.
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Scope of executive powers
The US Constitution's second article, which defines the executive power of the President, has been subject to various interpretations and debates over the scope of executive powers. While it grants the President broad authority, there are also limitations and checks on this power.
The President is the Commander-in-Chief of the armed forces and has the power to grant reprieves and pardons, except in cases of impeachment. They can also fill vacancies during Senate recess, convene and adjourn Congress, and receive ambassadors. The President is responsible for ensuring the laws passed by Congress are faithfully executed, and they commission all US officers.
The Take Care Clause, which mandates the faithful execution of laws, is a significant source of presidential power, but also a limitation. It has been central to debates about the scope of presidential power, including the power to remove federal officers. While the President cannot authorise violations of federal law, modern Presidents have occasionally ignored laws they deem unconstitutional.
Executive orders are a key aspect of presidential power. While there is no explicit provision for them in the Constitution, they are generally viewed as deriving authority from Article II, Section 1 (the Executive Power Clause). These orders can be revoked by the issuing President, a successor, or by Congress through legislation. Courts can also overturn orders deemed beyond the President's constitutional authority, though private civil suits regarding executive orders are rare.
The expansion of presidential power over time has led to concerns about the balance of powers. The federal judiciary has played a role in defining the scope of executive power, with the Supreme Court interpreting the Executive Power Clause as granting specific powers rather than a bulk grant of all conceivable executive powers.
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Congressional accountability
The United States Congress, comprising the House of Representatives and the Senate, is responsible for conducting oversight of the executive branch. This is achieved through hearings, with the House Committee on Oversight and Government Reform and the Senate Committee on Homeland Security and Government Affairs dedicated to overseeing and reforming government operations.
Congress also possesses substantial investigative powers and can compel the production of evidence or testimony. This is facilitated by the Government Accountability Office (GAO), which audits and generates reports on government activities, ensuring taxpayer dollars are spent effectively and efficiently.
However, there have been concerns about the effectiveness of Congressional accountability, particularly in checking executive power. For instance, during the Trump administration, there were criticisms that Congress did not adequately hold the President accountable for his actions, such as his refusal to release tax returns or his alleged ties to Russian interference in the 2016 election.
Additionally, the Supreme Court's rulings in cases like Trump v. United States have limited presidential accountability by granting immunity to the President from criminal prosecution for official acts. This has highlighted potential ethical loopholes in the Constitution, such as the lack of clarity around presidential pardon powers and the ability to hold a president accountable for ignoring a Supreme Court order.
To address these concerns, some have proposed strengthening the framework for executive branch accountability and ensuring the protection of democracy through legislative action, such as the Protecting Our Democracy Act.
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Deportation laws
The United States Constitution and its amendments guarantee certain rights to all persons within the country, including non-citizens. These rights have implications for deportation laws and proceedings.
The Fifth Amendment entitles aliens to due process of law in deportation proceedings. This means that the government must provide clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true. The Supreme Court has held that deportation without a fair hearing or on charges unsupported by any evidence is a denial of due process. However, the right to legal counsel in deportation proceedings is not always guaranteed, as most deportation proceedings are civil rather than criminal cases.
The Sixth Amendment guarantees the right to legal counsel in all criminal proceedings. Under the Trump administration's Zero-Tolerance Policy, undocumented immigrants caught crossing the border illegally were criminally prosecuted, thus entitling them to legal counsel.
The Supreme Court has also recognized the right to family unity for undocumented immigrants. The Court has used this right to strike down immigration policies that separate families, such as the Trump administration's family separation policy. The US government must prevent family separations whenever possible and provide reunification services when they do occur.
Additionally, the Fourth Amendment guarantees the right of everyone in the United States against unreasonable searches and seizures by the government. This right applies to all persons, including undocumented immigrants.
Finally, while there is no explicit "right to education" in the Constitution, undocumented migrant children's access to education may be considered under other sections of the Constitution.
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Presidential accountability
While the president is subject to certain disclosure rules under the federal Ethics in Government Act (EIGA), loopholes in these rules make it challenging to achieve full disclosure of assets, income sources, and debts that could impact decision-making. The Office of Government Ethics (OGE), responsible for setting rules for other Executive Branch personnel, has limited enforcement authority and independence from the president, further complicating the accountability process.
To enhance presidential accountability, there have been calls for Congress to amend the federal conflict of interest statute to include the president and vice president. This would ensure they are held to generally applicable ethical standards and prevent potential conflicts of interest. Additionally, strengthening disclosure requirements and ethics enforcement mechanisms can provide greater transparency and deter self-dealing.
The Supreme Court's decision in Trump v. Anderson, where Trump was allowed to remain on the ballot despite being found to have "engaged in" insurrection, has also raised concerns about presidential accountability. The Court's interpretation of the Fourteenth Amendment limited states' ability to enforce Section 3 against federal office seekers, including the president, highlighting the need for clearer guidelines and enforcement of accountability measures.
Furthermore, the interpretation of the 22nd Amendment, which addresses presidential term limits, has been debated. Some have argued that a loophole in the amendment's wording could allow a president to serve more than two terms by running for vice president and then assuming the office through resignation or other means. However, legal scholars have disputed this interpretation, stating that it misinterprets the amendment's intent.
To address these concerns and strengthen presidential accountability, various measures have been proposed. These include extending the federal bribery statute to cover president-elects and successful candidates, ensuring ethical conduct during the transition period, and empowering Congress to enforce accountability measures. By implementing these measures, the United States can work towards closing ethical loopholes and upholding the integrity of the presidency.
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Frequently asked questions
Trump's presidency brought to light several ethical loopholes in the US Constitution. Firstly, Trump claimed he had the "absolute" power to pardon himself, which is not explicitly prohibited by the Constitution. Secondly, Trump's refusal to release his tax returns and medical records, as well as his contradictory explanations of his dealings with foreign entities, highlighted gaps in the Constitution's ability to hold the president accountable for their actions. Thirdly, Trump's use of the Alien Enemies Act to justify mass deportations of immigrants without due process exposed a loophole in the Constitution's protection of individual rights. Finally, Trump's stance on the unitary executive theory, which would give him absolute control over independent government institutions and agencies, presented a significant challenge to the constitutional separation of powers.
Trump's arrogant attitude towards his own power and his refusal to be held accountable by Congress allowed him to exploit these loopholes. He flouted rules against using his position for personal financial gain and turned a blind eye to Russian interference in the 2016 US elections.
During Trump's presidency, the Republican-controlled Congress was largely absent in checking his transgressions of constitutional rules and norms. This stood in contrast to the impeachment of Richard Nixon during the Watergate scandal, where members of his own party supported the impeachment process.
The ethical loopholes exploited by Trump during his presidency led to concerns about the destruction of the Department of Justice and the end of the rule of law in America. His disregard for the Constitution and the laws of the United States threatened the foundations of American democracy.
