Is running the US government based too much on ‘norms’ –  and not enough on rule of law?

I read the Vox article Are We In a Constitutional Crisis Yet? with a mix of interest, curiosity and concern. While all of the 13 law professionals interviewed agree that we’re in a difficult situation in regards to how the United States government is being run today, some say we’re not in a Constitutional crisis until the president refuses to obey a court order – an order which could be issued if Congress’ demands for information relating to its task of rounding up materials needed to impeach government officials are ignored.

The article’s easy to read format helped me understand the subject of impeachment much better, and appreciate the difficulties inherent in handling proceedings against a sitting president who has little apparent respect for the laws and procedures which form the norms by which America lives and works. Note: Impeachment is a process known by the term ‘indictment’ when charges are made in a court setting, rather than a government one.

The legal opinion voiced in the article that best captured my attention, points out that a central problem which has repeatedly arisen in regards to Donald Trump’s flouting of the rules governing the behaviour of top US government officials, may stem from the fact that many of the rules are more guidance and suggestion – what NYU law professor Melissa Murray calls ‘norms’ – than they are codified legal requirements.

Prof Murray writes:

It seems like we’ve been careening from constitutional crisis to constitutional crisis as this administration has repeatedly refused Congress’ oversight requests. The fact that this involves an impeachment inquiry — Congress’ ultimate check on the Executive — amplifies the sense that this is different from what preceded it. “THE LETTER FROM THE WHITE HOUSE IS A POLITICAL STUNT THAT MISINTERPRETS THE CONSTITUTION, IGNORES RELEVANT PRECEDENTS, AND DEFIES COMMON SENSE”

So does this leave us in a constitutional crisis? Maybe. But to my mind, the thing that is most concerning about all of the administration’s frequent clashes with Congress is that they make clear how much we rely on norms, rather than rules (whether constitutional or not), for the government to operate effectively and efficiently. 

In the past, when the administration and Congress disagreed over oversight requests, they negotiated a mutually agreeable outcome, and failing that, resorted to the courts to resolve the dispute. The norm of interbranch negotiation and resolution has fallen by the wayside with this administration. It’s unclear whether it can be resurrected going forward. The abrogation of the norms on which the exercise of constitutional powers depend might be the real constitutional crisis here.

Congress clearly does not require the president’s permission or agreement to impeach him. Georgia U law professor Diane Marie Amann points out, “…the White House cannot just refuse across the board to cooperate with subpoenas. Persistence may result in a finding of contempt of Congress, a federal crime punishable by up to a year in prison.” But it is also not clear at all whether there exists an individual in any branch of the US government or judiciary who would feel him/herself empowered to arrest and jail the POTUS.

Our deepest problem may be more the enforcement of law, when it comes to high-profile government official, than it is a matter of identifying either legal violations – or their remedies.

Leave a Reply