Move Over "Our Democracy"—It's "Constitutional Crisis" Time!

Once again, the media and the left are attacking Trump for having the same view of executive power and relations with the judiciary that their hero FDR held.

The media and The Resistance^TM are in full fury mode today on account of Trump’s answer to NBC's Kristin Welker's dumb question about whether Trump would "uphold the Constitution" with regard to deportations, which Trump opened by saying, "I don't know about that."

Cue the left to light their hair on fire, except they don't have any hair left to torch at this point. Of course, Trump went on to point out that the legal questions have not been sorted out or ruled upon definitively by the Supreme Court, which is what Trump clearly meant by his phrase "don't know about." But the media can't be bothered to take in the full context.

Trump went on to defer to his lawyers, but added:

"Some of the worst, most dangerous people on Earth. And I was elected to get them the hell out of here and the courts are holding me from doing it. . . What you’re not saying is that many people have been killed, maimed, badly hurt by illegal immigrants that came over that are from prisons and from jails and from mental institutions. And they’re hurting our people. And if we don’t get them out, we’re not going to have a country for long."

‘I have brilliant lawyers that work for me, and they are going to obviously follow what the Supreme Court said. What you said is not what I heard the Supreme Court said. They have a different interpretation." [Emphasis added.]

Now, the Resistance^TM has moved on from "Our Democracy^TM" to "Constitutional Crisis^TM", and is dying to say that "Trump is defying the judiciary! 'Constitutional Crisis!^TM' Impeach!!"

But guess who was ready to defy the Supreme Court openly and directly if the Supreme Court ruled the "wrong" way? The great liberal hero president, Franklin Roosevelt.

An alert reader directed my attention to a Florida Law Review article from 2012 by Gerard N. Magliocca of Indiana University School of Law on "The Gold Clause Cases and Constitutional Necessity." The article explains how President Roosevelt was prepared to defy the Supreme Court if it held unconstitutional (under the Contracts Clause) the New Deal moves to cancel all contracts that required payment in gold at a specific valuation. As the abstract explains:

Following oral argument, President Franklin D. Roosevelt was concerned that the Court would invalidate the Joint Resolution. He concluded that he could not accept this result, and thus drafted a Fireside Chat announcing that he would not comply with such a decision. This unprecedented statement, which invoked the New Testament and necessity as the grounds for rejecting the Court‘s decision, has never been closely analyzed until now. [Emphasis added.]

The Supreme Court upheld FDR's measures to cancel gold contracts in Perry v. United States in 1935, although with "slippery" reasoning that reminded observers of John Marshall in Marbury, namely, that the gold clauses were unconstitutional as regarded U.S. bondholders, but that bondholders, like William Marbury in 1803, were not entitled to relief, causing one legal scholar at the time to comment, “Few more baffling pronouncements, it is fair to say, have ever issued from the United States Supreme Court.” One wonders whether there was behind-the-scenes politicking between FDR and the Court, or whether the Court blinked—prefiguring its total capitulation in 1937—fearing a constitutional crisis if it struck down the gold clauses. Magliocca's article contains considerable evidence that intrigue indeed took place.

FDR's undelivered radio address that laid out his reasons for defying the Court's possible adverse ruling. Prof. Magliocca comments that "The speech that would have announced this bombshell, would have been unprecedented in its brazen rejection of a Supreme Court decision. . ." Among the revelations in Magliocca's account is this telling detail: "After reading the speech to Morgenthau, Roosevelt noted that Joseph P. Kennedy believed that 'the statement is so strong they will burn the Supreme Court in effigy.'"

FDR made a strong case for the restriction and then revaluation of gold amidst the economic crisis of the Great Depression, just as Trump makes a strong case that requiring full due process hearings for every deportee (who violated due process when they entered the country) is an impossibility. But here is the nub of FDR's constitutional argument in the draft of the address:

I do not seek to enter any controversy with the distinguished members of the Supreme Court of the United States who have participated in this (majority) opinion. They have decided these cases in accordance with the letter of the law as they read it. But it is appropriate to quote a sentence from the First Inaugural Address of President Lincoln:

"At the same time, the candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between the parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."

It is the duty of the Congress and the President to protect the people of the United States to the best of their ability. It is necessary to protect them from the unintended construction of voluntary acts, as well as from intolerable burdens involuntarily imposed. To stand idly by and to permit the decision of the Supreme Court to be carried through to its logical, inescapable conclusion would so imperil the economic and political security of this nation that the legislative and executive officers of the Government must look beyond the narrow letter of contractual obligations, so that they may sustain the substance of the promise originally made in accord with the actual intention of the parties. [Emphasis added.]

For value received the same value should be repaid. That is the spirit of the contract and of the law. Every individual or corporation, public or private, should pay back substantially what they borrowed. That would seem to be a decision in accordance with the Golden Rule, with the precepts of the Scriptures, and the dictates of common sense.

In order to attain this reasonable end, I shall immediately take such steps as may be necessary, by proclamation and by message to the Congress of the United States.

Trump ought to issue a statement paraphrasing FDR’s message, and watch liberal heads explode.

But it’s okay when FDR did it!