Since the events of Jan. 6, 2021 and its aftermath, we and many others in the legal profession have warned about the steady erosion of the Rule of Law and the breakdown of our constitutional order. Still, over the last year, the decline has accelerated and has now reached locomotive speed.
Opinion
There is more than one cause for this, including partisan congressional gridlock, but it is clear the primal force behind the recent dramatic deterioration of our constitutional guardrails is the unprecedented assertions of executive power by President Trump and the accompanying unwillingness of our Congress to restrain him.
The president’s unilateral decision to send a large U.S. military force into Venezuela last week, without seeking congressional approval, is just the latest example of his executive power overreach. Through the use of hundreds of executive orders, proclamations and executive memoranda often disingenuously justified with self-declared “emergencies,” the president has repeatedly evaded Congress to take unilateral executive action beyond what any other peacetime president has done before.
The chronic resort to unchecked executive action based on one man’s declared “emergency” should raise an enormous red flag to anyone who claims to support American constitutionalism. Indeed, only a few years ago, our own U.S. Rep. Harriett Hageman sought to curb President Biden’s far more modest use of emergency executive orders by co-sponsoring the “Restoration of Separation of Powers Act” in Congress. Quoting James Madison, her bill rightly affirmed that “[t]here can be no liberty where the legislative and executive powers are united in the same person.” Her bill thus proposed that every executive order be expressly supported by a presidential “statement of [its] specific statutory or constitutional authority” and that every “emergency” order would be short-lived, automatically terminating after 90 days absent congressional approval.
But her bill did not pass. And now that President Trump is declaring the emergencies and signing the executive orders, her previous concern about runaway executive power has vanished. Both she and Sens. John Barrasso and Cynthia Lummis have stood by mutely while the president, claiming one emergency after another, has wrecked congressionally approved programs and agencies, impounded or re-directed congressionally appropriated funds, circumvented congressional authority to impose crushing tariffs on our allies, deployed military forces into states against their wishes, imprisoned and deported thousands of individuals without due process, authorized the killing of over 100 foreign civilians via multi-million dollar missile strikes on unproved charges of “narco-terrorism,” and, to start the new year, shaken our entire hemisphere by directing our armed forces to invade a sovereign nation of 30 million people, seizing its head of state and killing 80 people in the process.
These presidential orders are direct assaults on Congress’ constitutional authority to tax and spend, declare war and oversee the military — the fundamental powers over the “purse and the sword,” which our founders fought a long and bloody war to take from a king and instead place in the hands of “the people” through our elected Congress.
Yet, in the face of these unprecedented presidential actions, our Congress has done nothing to protect its hard-won authority — authority bestowed upon it through the supreme sacrifices of our ancestors. Indeed, in a perversely ironic twist, many in Congress, including our own representatives, have howled in protest when federal judges, seeking to preserve congressional authority, have declared various executive orders unconstitutional. As we wrote previously, this shameful condemnation of our judiciary by members of our legislative branch has not only encouraged the president to further exploit his executive power, but it has also weakened the independence of both the judicial and legislative branches and enflamed threats of violence against judges and their families.
The president and his supporters say all of this is “great” because our nation has become weak and only radical actions by a “strong” leader can save us. Espousing these views, the president thus quotes Napoleon to proclaim, “he who saves his Country does not violate any Law.” But this ends-justify-the-means worldview is both morally bankrupt and utterly at odds with our founders’ deliberate design based upon shared powers between three branches of government — a design inherent in our national and state constitutions and the laws established by our representative legislatures. Over the last 250 years, millions of Americans have fought and died to preserve our unique form of republican democracy, a governmental structure that has made America the hope and envy of the free world.
Yet the president and his followers now increasingly see our Constitution and laws as optional; they seek to discredit citizens like us who dare to challenge the authority for the president’s bold actions by calling us “elitist” or “radical woke leftists.” They say the world has changed and that our problems are now too big to solve through legalistic constitutional processes and “rules-based systems.” Tired of democracy, they cheer the president’s every action, including his ever-growing resort to force, whether through the expanded deployment of masked ICE brigades in blue American cities, or by bombing, blockading and threatening a growing number of sovereign countries.
It should be impressed: The president took his recent actions regarding Venezuela without even consulting Congress, let alone seeking its permission. Worse, our own three congressional representatives did not even want to be informed. Barrasso and Lummis both voted against a recent resolution merely seeking to give the Senate the opportunity to debate and discuss whether the president’s military actions in Venezuela required congressional approval under the War Powers Act. Their vote against even engaging on the topic gave the president a blank check to launch last week’s invasion, and seemingly whatever other military action he may have in mind for Venezuela — or anywhere else.
This is not the American way. Americans have always vigorously debated the proper ends of government, but we decided 250 years ago that the means to accomplish those ends must always conform to our Constitution and laws. Americans teach our children “might does not make right,” rules matter and the ends do not justify the means. We have not always lived up to our lofty national standards, and those standards have evolved through costly trial and error. Even so, pursuing our public goals the “right way,” in accordance with established law, international treaties and recognized principles of justice, is foundational to our national identity. It is also at the heart of American moral and religious traditions, which have always asked: “For what does it profit a man to gain the whole world and forfeit his soul?”
We’ve come to the 250th anniversary of our founding, and yet another important election year. If we truly want to retain or reestablish our national “greatness,” then we, and especially those we choose to represent us in Congress and our state and local governments, must all profoundly recommit to the fundamental and very simple proposition that America is, and has always been, a nation of laws, not men. This is the American way. And it is the only means through which Americans can authentically pursue “life, liberty, and the pursuit of happiness” consistent with our founding. Our parents and grandparents and so many more fought and died for this principle. We can no longer allow our priceless heritage as Americans to be sacrificed on the altar of those who shortsightedly value their personal ambitions or political party power over our Constitution, laws and moral code.
Please join us this special anniversary year to demand that every Wyoming political candidate and office holder protect and defend America’s constitutional values and democratic institutions from further debasement. Our children and grandchildren depend on it.
Signed,
Michael J. Sullivan (Former Wyoming Governor & U.S. Ambassador, Attorney), Michael Golden (Wyoming Supreme Court, Chief Justice (Retired)), Michael K. Davis (Wyoming Supreme Court, Chief Justice (Retired)), Marilyn S. Kite (Wyoming Supreme Court, Chief Justice (Retired)), William F. Downes (U.S. District Court Chief Judge (Retired), Mediator), Frank Mendocino, (Former Attorney General & Wyoming legislator, Retired Attorney),Timothy C. Day (District Court Judge, Ninth District (Retired) and Past President Wyoming Bar Assn.), David B. Park (District Court Judge, Seventh District (Retired), Marvin L. Tyler (District Court Judge, Ninth District (Retired), Mediator), Peter G. Arnold (District Court Judge, First Judicial District (Retired), Thomas W. Harrington (Circuit Court Judge, Fifth District (Retired)), James Radda (Circuit Court Judge, Ninth District (Retired); Richard M. Davis (Past President Wyoming Bar Assn., Attorney, Sheridan), J. Kenneth Barbe (Past President, Wyoming Bar Assn., Attorney, Casper), John Masterson (Past President, Wyoming State Bar, Attorney, Casper), Anna Reeves Olson, (Past President, Wyoming State Bar, Attorney, Casper), Rebecca A. Lewis (Former Wyoming Bar Counsel (Retired), Rebecca W. Watson (Former Assistant Secretary for Land and Minerals Management, U.S. Department of the Interior, Attorney, Cody), Donna Playton (Law Professor, Attorney, Laramie), John F. Araas (Retired Attorney, Sheridan), James R. Belcher (Attorney, Casper), Baend Buss (Attorney, Cheyenne), Kim D. Cannon (Attorney, Sheridan), Hal Corbett (Attorney, Sheridan), Susan C. Stubson (Attorney, Casper), Jean A. Day (Retired Attorney, Jackson), Stephenson D. Emery (Attorney, Casper), Stuart R. Day (Attorney, Casper), Judith A. Studer (Attorney, Casper), Emily Rankin (Attorney, Jackson), Cameron Walker (Attorney, Casper), Abigail E. Fournier (Attorney, Cheyenne), Adelaide P. Myers (Attorney, Saratoga), Alaina M. Stedillie (Attorney, Casper), Alexander F. Freeburg (Attorney, Jackson), Benjamin J. Rowland (Attorney, Cheyenne), Bradley E. Adams, (Attorney, Jackson), Bradley L. Booke (Attorney, Jackson), Catherine E. DiSanto (Attorney, Jackson), William P. Schwartz (Attorney, Jackson), Cheryl R. Schwartz (Retired Attorney, Jackson), Claire Fuller (Attorney, Jackson), Craig Newman (Attorney, Casper), Joseph F. Moore, Jr. (Mediator, Retired Attorney, Jackson), Robert Mullen (Mediator, Attorney, Casper), Edward F. Hess, Retired Attorney), George E. Powers, Jr. (Retired Attorney, Cheyenne), George Santini (Attorney, Cheyenne), J. Nicholas Murdock (Attorney, Casper), J.R. Twiford (Business Executive, Attorney, Story), Jack D. Palma II (Retired Attorney, Cheyenne), Jason E. Ochs (Attorney, Jackson), Jennifer A. Reece (Attorney, Casper), Jennifer L. McDowell (Attorney, Casper), John E. Ackerman (Attorney, Wyoming, Texas),), John H. Robinson (Attorney, Casper/Jackson), Kristen J. Schlattmann (Attorney, Worland), Leah C. Schwartz (Attorney, Jackson), Leonard R. Carlman (Attorney, County Commissioner, Jackson), Linda E. Devine (Attorney, Laramie), Linda J. Steiner (Attorney, Cheyenne), Margaret A. R. Schwartz (Attorney, Jackson), Mary Elizabeth Galvan (Attorney, Laramie), Mel C. Orchard III (Attorney, Jackson), Michael B. Rosenthal (Retired Attorney, Cheyeene), Michael F. Lutz (Attorney, Jackson), Nicole G. Krieger (Attorney, Jackson), Pamela T. Parkins (Attorney, Teton County), Scott Garland (Attorney, Jackson), R. Scott Kath (Attorney, Powell), Richard J. Mulligan (Attorney, Jackson), Robert P. Schuster (Attorney, Jackson), Rolf Engh (Retired Attorney, Jackson), Tenille L. Straley (Attorney, Sheridan), Timothy O. Beppler (Attorney, Evanston), Weston W. Reeves (Attorney, Casper), Anna Mommsen (Attorney, Jackson), Rhonda Woodard (Retired Attorney, Cheyenne).