The other day, Westport attorneys and longtime civic volunteers Ken Bernard and Lawrence Weisman spoke to 24 Ukrainian law students.
The Zoom session focused on the American legal system, and what Bernhard and Weisman believe is President Trump’s threat to the Constitution.
Ken Bernhard (top) and Lawrence Weisman, in a poster advertising their Zoom lecture.
Bernhard has taught law in Ukraine before. He became friendly with Professor Dmitriy Kamensky, who arranged this and a previous event (and translated for the Americans).
Professor Kamensky will be in Westport at the end of June.
Here is what Bernhard and Weisman told the Ukrainian law students.
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I want to thank Professor Kamensky for inviting my colleague attorney Weisman and me to discuss with you our thoughts on the current political and Constitutional issues facing the US.
To avoid any misunderstanding, we are not speaking for anyone other than ourselves. We are not connected with any organization or political party.
Let me first set the stage for our discussion. Why do we have a Constitution?
A Constitution is a foundational document that establishes the basic principles, structure and processes by which a government operates. It serves as a framework for organizing political power, defining the rights of citizens, and outlining the responsibilities and limitations of various branches of government.
A Constitution is intended:
- To limit and prevent abuses of government power;
- To provide stability by establishing a clear structure, and a set of rules to foster consistency and predictability and to maintain order;
- To define and protect individual rights upon which government may not infringe;
- To reflect a nation’s core values and to serve as a statement of collective identity and purpose;
- To distribute power among different branches to prevent any one branch from becoming too powerful; and,
- To promote accountability and the rule of law.
The US Constitution distributes power among 3 co-equal branches of government: the Executive (the president and his cabinet, nominated by him and approved by Congress); the Congress (made up of the Senate, with 2 senators from each state regardless of size, and the House of Representatives, reflecting the size of the population of each state); and the Judiciary.
The Founding Fathers, who wrote the Constitution in 1787, purposefully intended to separate power so that each branch could provide checks and balances to the other 2, and prevent the concentration of power in one branch or in one person. The American colonialists had just fought a revolution to separate from a king. They wanted a new form of government, where power was more democratic.
For our system to function effectively, however, each branch of government must play its part, and each must acknowledge the limits on its power. When one branch of government fails to discharge its Constitutional responsibility or to check another branch from asserting power, the stage is set for a Constitutional crisis. That is what we, Ken and me, fear we are seeing in the new administration.
President Trump is claiming executive powers that no previous president has ever asserted, and for the moment, the Republican majority in both the Senate and the House of Representatives is letting him do it.
This surrender of power by the Congress can foster autocracy and corruption. It undermines cultural norms and long-standing policies that, while not specifically set out in the Constitution, are the rules by which the US has governed itself for the 240 years.
With the executive branch seemingly intent on undermining the Constitution, and the legislative branch unwilling to play its proper role, Ken and I feel that our country is facing a Constitutional crisis, and our democracy must look to the judiciary (the courts) to provide a check on the executive branch. The problem is that courts and cases take time to resolve issues.
When one branch of government asserts superiority over the others, it can have serious consequences including:
- Erosion of our Constitutional government, specifically the separation of powers
- A reduction in accountability where the rule of law is weakened and fundamental democratic principles violated, and
- A government that causes uncertainty, public disillusionment, unrest, and political instability
That’s what Ken and I fear is happening now in the US.
Here are some examples of Trump’s overreach of executive power:
Unlawful impoundment of funds: The Trump administration unilaterally delayed or canceled appropriations enacted into law, a practice known as impoundment, which is prohibited under the Constitution.
Interference with Congressional investigations: President Trump made aggressive constitutional claims to protect his financial records, challenging congressional committees’ authority and undermining the separation of powers.
Politicization of the Justice Department: The administration’s actions, including the dismissal of inspectors general without proper notice or rationale, compromised the independence of oversight bodies designed to ensure executive accountability.
Violation of the Emoluments Clauses: President Trump received substantial payments from foreign governments through his businesses, raising concerns about violations of the Constitution’s Domestic and Foreign Emoluments Clauses.
Disregard for the Appointments Clause: The administration’s frequent use of “acting” officials in key positions without seeking Senate confirmation raised concerns about bypassing the Constitution’s Appointments Clause.
Unilateral military actions: President Trump ordered military strikes without seeking congressional approval, raising questions about the executive’s war powers under the Constitution.
First Amendment violations: The administration barred journalists from certain events, infringing on press freedoms protected by the First Amendment.
Interference with federal employment: Advisor Elon Musk’s directive requiring federal employees to justify their job roles led to confusion and legal challenges, potentially infringing on due process rights.
Erosion of democratic norms: The administration’s governance style, characterized by treating the state as personal property and rewarding loyalty over competence, led to significant corruption and incompetence within the government.
Disregard for judicial authority: Following unfavorable rulings, President Trump and his allies attacked the judiciary, undermining the constitutional principle of an independent judicial branch.
These actions collectively represent significant challenges to our constitutional framework and our democratic principles and we fear we are in the beginning of a Constitutional crisis.
