A Year In, And It’s Time To Recognize: The Oval Office Is Empty

Legal Issues

from the another-way dept

It will be to the everlasting shame of all Americans that impeachment has not yet been accomplished to formally remove Trump from office. Not in his previous term, and not this one, at least not so far. In fact, this term it has hardly even been attempted. If it weren’t for Representative Green honoring his oath of office it wouldn’t have even been tried at all. Even Democrats are still in significant numbers joining their Republican colleagues in refusing to do what is needed to save our constitutional order, despite everything Trump has done from the moment he retook office—including taking the office, which he was ineligible to do as a confirmed insurrectionist—being entirely inconsistent with the Constitution’s instructions for how to achieve a democratically sustainable federalized union of states.

Impeachment still needs to happen, for Trump and his minions, not just to cleanly expel Trump from the presidency but to disqualify him from ever returning to it. And that expulsion needs to happen with an urgency that really required it to have been completed at the latest by last March. Yet the way things are going, with Congress dragging its feet, it seems we’ll be lucky if it will even happen by this March, if at all. Moreover, with Trump upping the ante at every turn, we’ll be lucky if the nation, all its constituent states, and even most of the people who depend on the Constitution’s promises of liberty, freedom, and justice for all, are still standing by then if nothing is done to officially separate him from the powers of the office he continues to claim. After all, every day of delay is another day for a five year old to be shipped to a concentration camp in Texas. Even if the nation survives this presidency, it’s already clear we won’t all.

But it turns out, Trump has already begun to separate himself from the presidency. And that he has done so reveals another path the Constitution allows for retaking our democracy, starting now.

On this appalling anniversary week of Trump’s installation as the 47th President of the United States, it is time to recognize an essential truth: he has functionally already abandoned the office. Sure, he still (nominally) lives in the White House, meets heads of state (and insults them), is answered to by the military (however ill-advisedly), signs bills (and pardons!), and at least superficially seems to be conducting the basic functions of the office. These are things that the Constitution allows presidents to do, not because, as Trump seems to think, the Constitution seeks to reward a single person with the special power to do any of them, but because these are governmental functions someone needs to do and it makes more sense to grant a chief executive the ability to do them than someone in any other branch of government.

But the exercise of these functions is not the full extent of the job. The job of president, as the Constitution describes, also includes the requirements to “take care that the laws be faithfully executed,” and to fulfill the oath he swore upon taking office, which included the promise to “preserve, protect and defend the Constitution of the United States.” None of these obligations are incidental to the job; they are key counterbalances to the enormous power the position affords its occupant. Yet he has been doing none of them in any sort of meaningful way, if at all. In fact, all too often he instead does the exact opposite of what’s required by the job, including by engaging in his own criminality, abetting the malfeasance of others, and otherwise generally upending our constitutional order by ignoring statutes, treaties, and constitutional text, and turning every bit of power he’s managed to wring from his position against the very same public the Constitution says he works for.

There are few situations where we would consider someone not doing what they were hired to do, and in fact doing the very opposite of what their job required, as still being employed in that job. If you hire a guard to watch the bank, you’d expect him not to help the robbers rob the bank. If you hired a doctor to treat patients, you’d expect him to not kill them instead. But if while on the job they did the opposite of what they were hired to do, you would understand them to have abandoned their position. You wouldn’t expect the guard who let in the robbers on Tuesday to still show up to work securing the place on Wednesday, or the doctor who euthanized his patients Thursday to show up to treat more on Friday; you would understand from the moment they did these things that you now have some vacancies to fill.

Which is where we find ourselves. The degree to which Trump has refused to perform the requirements of his job, to say nothing of his regularly acting contrary to them, means that we effectively have a vacancy in the Executive Branch. Americans can no longer have any trust that he is working for us when he daily demonstrates that he is only working for himself. Or that he’ll enforce the law when he regularly transgresses it and enables others’ transgressions as well. Or that he’ll uphold the Constitution when he regularly violates the separation of powers and people’s protected rights. Or that he can be a protector of the country when he has used his position to attack it. Like with the larcenous bank guard or wayward doctor it would be irrational to believe that despite having acted in such conflict with the requirements of his job that it is a job he has nevertheless somehow still kept. Instead, by refusing to uphold his oath of office, and acting in so many ways counter to it, he has effectively abandoned the office he took that oath in order to enter.

The Constitution says that when the office is vacant there is a succession process to fill it. Where it is less specific is in instructing how a de facto vacancy, such as the kind we are experiencing, can be regarded as an official de jure one for purposes of triggering succession. But it doesn’t say we can’t, and plenty of language in the Constitution says we can, and indeed must.

Per Article II, Section 1, of the Constitution, succession happens when there is either a physical departure from the office by the President, such as through death or resignation, or a functional one, essentially measured by the “Inability to discharge the Powers and Duties of the said Office.” (The 12th Amendment, as amended by the 20th Amendment, also indicates that a vacancy is created when there is a “constitutional disability,” which would seem to include his ineligibility for the office as an additional obstacle to him being able to discharge the powers and duties of the office.) While for Trump there also remains the possibility of mental incapacity being yet another reason he is unable to fulfill the responsibilities of the office, in addition to his conscious abandonment of the position, it all boils down to the same thing: he has demonstrated that he is unable to continue serving in the role as the Constitution requires. The vacancy thus exists, and now it just needs to be officially recognized so that succession can begin.

The 25th Amendment describes one avenue for such recognition, but that particular process seems unlikely to be pursued any time soon given that it would require equally compromised cabinet members to unite with the Vice President to support Trump’s displacement, which they are unlikely to do as long as they feel they benefit from Trump remaining in office (which is, of course, a reason why Hegseth, Rubio, Noem, Bondi, etc. should also themselves all be impeached, so that there’s a snowball’s chance that more ethical people could take their place for 25th Amendment purposes). But it seems unlikely that the Constitution meant the 25th Amendment to be the sole process available for recognizing that effectively there’s already a vacancy in the presidency, for several reasons. For one thing, the way it is written it seems more attuned to articulating a plan for succession in the face of a temporary disability, like a coma, because it includes a mechanism by which the succession can be undone. Whereas abandoning the office, like Trump has done, does not seem, consistent with the spirit of the Constitution if not the letter, like something that can simply be undone without being re-elected. Furthermore, as we see here, the 25th Amendment does not correct for the sort of situation we find ourselves in now, where the people who could and should be invoking it are not, even though the essential problem remains: there is still no one currently at the helm of the United States of America doing the job in a way the Constitution requires. And such will remain the case regardless of whether Vance and company ever make a move to address it.

Impeachment is of course another appropriate option for addressing a wayward president who is not living up to the job, but it, too, cannot be the only other means for handling a situation like this, where his failure to perform the job as required has already created the vacancy. For one thing, it suffers from a similar problem as the 25th Amendment, where the right of the public to have a president that lives up to his constitutional obligations is effectively being held hostage by recalcitrant officials—this time those in Congress—who are unwilling to uphold their own oaths of office and do what needs to be done to officially extricate America from Trump’s grasp. Furthermore, impeachment is also designed to pry someone out of a job they are actually doing, and not just someone who is not, as well as apply disqualification as a sanction. It is a mechanism useful for creating a vacancy, but the need now is just to recognize that one already exists.

But that there is no other clearly established way for recognizing the vacancy does not mean there is no way. There appears to be another way. And key to pursuing it is to stop treating as President someone who clearly is not.

It would mean, first of all, challenging every bit of power Trump exercises nominally as president as being unlawful, and not just on its own terms as an act not permitted by statute or Constitution, given that most of the things he tries to do would still be unlawful even if a proper president tried to do them. The challenge needs to be that anything Trump does ostensibly as president is irredeemably illicit at its core. Give the courts the opportunity to at last find that whatever power Trump attempts to wield is power he no longer has.

Doing so would likely be an uphill battle, because no court has every nullified a presidency. To the extent that legitimacy has been in contention, the historical preference has been to settle the matter politically, rather than legally—or at least it was, up until Bush v. Gore, when the Supreme Court announced that the courts were in the president-anointing business. But it would make sense for the courts to be able to weigh in here, with respect to Trump, because why shouldn’t the Article III branch would have its own mechanism for addressing the vacancy of an absent president, especially while Articles I and II officials continue to abandon their own obligations to act in accordance with their own constitutional mechanisms. No branch should have an exclusive monopoly on policing the president, and as long as there has been judicial review, none has. The courts have long been able to hold presidents accountable to the Constitution. And while there may be no clearly established roadmap for involving the courts this way, there is also nothing preventing it.

The courts could be called upon to declare the office abandoned in various ways, and in response to challenges by various parties. Perhaps such an opportunity to challenge Trump’s legitimacy could arise if JD Vance gets ambitious and sues for a declaratory judgment that he is the actual president, because, while he’s no prize himself, at this point it certainly seems like he has a better claim to the office than Trump does. Perhaps it’s the states who can bring some sort of claim. Perhaps others who are affected by Trump’s abuse could sue too, just as they normally can challenge the lawfulness of his acts. Or perhaps the courts will have to weigh in when the military starts refusing Trump’s orders, as increasingly seems it likely will, as the ways Trump has been directing the military become more and more unlawful even on their own merits. In any case, one way or another it seems inevitable that the legitimacy of Trump’s continued presidency is going to be a question the courts will be called upon to answer, especially as the rest of our government refuses to.

And while any litigation would eventually land at the Supreme Court, such as it is, these challenges still need to be pursued because every case before it ultimately stands on its own. Even Trump v. Anderson is differentiable in key ways from the litigation that would reach it here. And hope springs eternal that this time maybe the Court will even get the question before it right, as the stakes raised by these challenges have never been more clear. Trump is running around acting with impunity, but as even the Supreme Court recognized in Trump v. U.S., immunity only attaches to official acts. And if he has already effectively abandoned the office, then none of his acts can be.

It is of course no small thing for anyone to declare a living president to have officially abandoned his office or otherwise take steps to delegitimize his occupancy in the office. Nor should it be something that easily can be done because, as we’ve seen with even just with 2020 election denial, once doubt creeps in about who is the legitimate president, the disagreement it causes can be destabilizing to our democratic order. In fact, it is likely that a big reason why Trump’s continued claim to the presidency has simply been accepted so broadly up to now, despite all the evidence, is that, by and large, we would rather delude ourselves into believing that he is the legitimate officeholder than risk the political instability of calling it into question.

Nevertheless, there are limits to how long we can maintain the myth of his legitimacy, which Trump has been daily making less and less believable. Hegemony is powerful; Trump only gets to masquerade as a legitimate president for as long as we let him. We don’t have to let him. Which is why we should appeal to the courts, as well as Congress and any politician anywhere in government, to argue not just that Trump should be made to leave but that he’s already left, and that it’s finally time for the government to respond to that reality.

It’s time to challenge his legitimacy because the Constitution does not take a time out. It does not wait for midterms. We are always entitled to a President that acts consistently with all of the Constitution’s requirements, and it tells us what happens when there isn’t someone doing so anymore. It is not for any of us to decide that this language suddenly somehow no longer applies.

In fact, it would be dangerous to, or to deliberately wait months and months to finally address the problem, while in the meantime our nation and everything we’ve built over the course of nearly 250 years is ruined. Especially not when Trump’s abandonment of the job has created the exigent likelihood that an interloper without any personal constitutional authority may now be functionally acting as president instead of him, wielding the office’s powers without any of the accountability the Constitution normally requires of someone in that position. In other words, it may not be that we are just without a president but, worse, instead at the mercy of an unelected pretender who has stepped into the vacuum Trump’s abandonment has created because we have refused to fill that void first.

There may of course be the fear that we risk a constitutional crisis to make such a serious move to deem the office vacant when the Constitution is not more specific that it is a move to be made. And it’s true; constitutional crises arise when we start making the most existentially important decisions about the nation’s governance without reference to a set of clear rules we’ve all agreed to. That we are in uncharted waters may thus give pause.

But we are not without any instruction for how to navigate them. Even though the Constitution has not provided a specific process to follow perfectly tailored to this effective abandonment of the presidency that Trump has committed, it still provides enough guidance to recognize the position is vacant and proceed with succession accordingly. If anything, it is the refusal to recognize the vacancy, especially by Congress and the cabinet, that has been what’s unilaterally and unconstitutionally changed the rules we’ve all previously agreed to, by letting Trump nevertheless continue to occupy the position when he has in every other way abandoned the job. Given everything Trump has done, and the actual text of the Constitution forbidding it, challenging his right to remain the acknowledged president won’t invite a constitutional crisis; rather, it is the failure to bring that challenge which is why that crisis is already here.

Filed Under: constitution, donald trump, impeachment, rule of law