Having sworn an oath to uphold the Constitution, federal employees and lawmakers must resist any unconstitutional meddling from the White House and use their oversight and legislative authority to investigate and prohibit such abuse.
President Donald Trump’s obsession with wielding federal power against Amazon and The Washington Post marks a dangerous break from bipartisan norms that have guarded against authoritarianism in America for decades. It’s also unconstitutional.
Trump is, apparently, strategizing about using the antitrust and tax laws, changing Postal Service rates, and canceling defense contracts to hurt the two companies — both owned by Jeff Bezos. Merely threatening action has already cost Amazon billions in stock value.
Our Constitution bars the president from using, or even threatening to use, the powers of the federal government to single out, and punish, a specific party.
The Fifth Amendment guarantees Americans “due process of law.” The government must follow fair and neutral procedures before taking enforcement or regulatory action against particular people and companies. The federal government may not deny anyone “equal protection of the laws.” That’s often thought to apply to groups — based on race or gender, for example. But it also bars arbitrary or discriminatory unequal treatment of specific disfavored people or companies. These rules apply to the president.
The First Amendment prohibits retaliation against disfavored speech. Trump has made no effort to conceal his outrage about The Post’s criticism. Last year, Trump tweeted that “The #AmazonWashingtonPost, sometimes referred to as the guardian of Amazon not paying internet taxes (which they should) is FAKE NEWS!” And he recently insisted that The Post must register as a lobbyist. Government officials, like other Americans, are free to respond to criticism and express their own views in the marketplace of ideas. But they must not use, or threaten to use, the power of government to retaliate against critical speech.
The president also breaches his Constitutional duties when he directs the powers of government against a specific party. Article II makes the president the head of the executive branch. But — in a clause Republicans once loved to throw against President Barack Obama — the Constitution also directs that the president “shall take Care that the Laws be faithfully executed.”
The president’s oath of office requires him to “preserve, protect, and defend the Constitution.” Thus, the president oversees the execution of the laws, rather than executing them himself. He also must act as a faithful public servant, not out of corrupt motive or self-interest. Thus, the president may not intervene in specific enforcement matters to direct the punishment of a perceived opponent or to get cronies off the hook.
The approach taken by presidents of both parties reflects these constitutional principles. The administrations of presidents Ford, Carter, Reagan, both Bushes, Clinton and Obama all followed detailed policies limiting contacts between the White House and federal agencies on regulatory, policy and enforcement matters focused on specific parties. But not Trump.
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The laws Trump wants to use as political weapons are the same ones Nixon used: antitrust and tax enforcement. Nixon reportedly directed the Justice Department to dismiss an antitrust case involving International Telephone and Telegraph (ITT) in exchange for political donations. And the articles of impeachment against Nixon charged that he had “endeavored to … cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.”
Of course, presidents are supposed to weigh in on general policy debates — and there’s ample room for debate here. In fact, by tainting the debate, Trump’s vendetta denies the country an opportunity for honest, substantive policy debates about Amazon (and media ownership). Everyone — regardless of their opinions on those issues — should be scared whenever government officials scheme to use the levers of government against a particular party. When the president does it, scarcely bothering to conceal it, it’s downright authoritarian.
What can be done? Having sworn an oath to uphold the Constitution, all federal employees must resist any unconstitutional meddling from the White House. Having taken the same oath, lawmakers must use their oversight and legislative authority to investigate and prohibit such abuse. And in cases before them, courts must vindicate the constitutional rights of anyone singled out for threats or retaliation by the government. Anything less would be un-American.