'A Lot Of Gray Area': A Legal Expert Explains 'How To Read The Constitution'

Jun 25, 2019
Originally published on June 25, 2019 7:42 am

What is the president actually allowed to do under the U.S. Constitution?

It's a question that's comes up from time to time at NPR, and when it does, we've turned to experts such as Kim Wehle, now a law professor and CBS News legal commentator. Now, she's written a book about it. It's called How to Read the Constitution — and Why.

Wehle says that all the debates around the constitutionality of various Trump administration policies inspired her to write the book. She says she originally had a contract to write a book for an academic audience, but found herself writing for laypeople.

"I think it's really important for people to be educated about not only about their constitutional rights, which is one part of the Constitution, but the structure — the structure of our government," Wehle says. "And if we allow the government to consolidate power in one branch, one man, one party, then our individual rights break down. So it's that message that I think is often lost in the day-to-day discourse about whatever that latest tree that's on fire in the forest. I like to focus on the forest."


Interview Highlights

On how reading the Constitution is like reading a poem

I have a poem in the book. And we break down the poem and talk about different ways of interpreting the poem, and how your point of view — what you're trying to achieve in reading the poem — might affect how you read the poem. And I suggest the Constitution is the same way. Every time we see a Supreme Court nominee come on board, or even in a presidential election, we hear calls for strict reading of the Constitution, judges that aren't going to color outside the lines. And the point — one of the many takeaways from the book — is that the Constitution is rarely black and white. There are underlying themes, one of which is accountability; nobody's above the law, nobody is the boss of all the bosses in our government. But other than that, rarely, rarely can we have a plain-reading, obvious interpretation of the Constitution. ...

And I get this with my students a lot. They want answers. (You know, I teach law students.) And I tell them: If you could Wikipedia the answer to the question, no one's going to pay you to do your job as a lawyer. It's a lot of gray area. These days, a lot of the questions that are being posed by this administration and the current Congress are not answered anywhere in the law; the Supreme Court hasn't addressed these at all. And so we can hypothesize as to what the proper answer is. We can have debates about it. But there really isn't a thumbs up or thumbs down on a lot of this stuff.

On what the Constitution says about the president's duty to execute or enforce laws

I think most people are surprised: The Constitution doesn't say anything about separation of powers, or checks and balances, or even the separation of church and state. But the way it's broken down is, there are three vesting clauses of the Constitution. The legislative branch makes laws; the executive branch enforces those laws. That's what the Constitution says. That being said, there's a lot of squishiness in the Constitution. And this is where we have to be quite vigilant to make sure that each branch doesn't step over too far over the lines of what it's supposed to do, and that that branch, when it does, gets checked by the other two branches, and ultimately by the voting public. ...

We see it, I think, a lot with migrants at the border, with Trump making the announcement there's going to be widespread enforcement of immigration laws. That is a determination, again, that individual prosecutors leading up to the president get to make, and the American public can say: Listen, that's not what we want our government to do. And the response would be to, of course, vote a different person into office. But I think the bigger issue these days has to do with Congress being feckless, really, in enforcing its own prerogative of oversight of the executive branch. We've seen not just under the Trump administration, but for decades a steady accumulation of power in the presidency. So Congress has to itself be vigilant to ensure that it retains its authority through the public to make sure that we don't have a king in this country. 'Cause fundamentally, our Founding Fathers and mothers didn't fight and die in the revolution to make sure there was more power in the presidency.

On the fragility of the Constitution, or its susceptibility to erosion

Again, the framers of the Constitution understood this, that it's human nature to amass power. And that's why we have this three-headed monster of government; we don't have a single one. Because the idea is no one's above the law. If this president crosses a legal boundary, crosses a norm boundary (a historical norm of behavior), and there's not a consequence, all of a sudden, what I say in the book, that tool goes in the president's toolbox for utilization by a future president. It might be a Republican president, it might be a Democratic president; that president's going to have that much power. So if you're on team Trump, or if you're on anti-team-Trump, it's sort of irrelevant. You have to say to yourself: How comfortable am I with my worst-case scenario president having this amount of power in his or her toolbox?

If that gives you concern, then I think you're one of the many people who should join me in this concern about the structure of our government sort of falling apart right now and moving, slipping into something that is certainly not consistent with how this country was founded, which is small government, not big government; individual people have the power. Government power has to be constrained. It's not a political thing; it's not blue and red. It's right and wrong at this point, and right and wrong in terms of protecting freedoms for our children and our grandchildren.

Victoria Whitley-Berry and Eric McDaniel produced and edited this interview for broadcast. Patrick Jarenwattananon adapted it for the Web.

Copyright 2019 NPR. To see more, visit https://www.npr.org.

RACHEL MARTIN, HOST:

What is the president allowed to do under the U.S. Constitution? This is a question that comes up from time to time on this program. And when it does, we've turned to experts like Kim Wehle. Now she's written a book taking that question head on. It's called "How To Read The Constitution - And Why." In it, she writes, reading the Constitution is a lot like reading a poem.

KIM WEHLE: Yeah. I have a poem in the book. And we break down the poem and talk about different ways of interpreting the poem and how your point of view, what you're trying to achieve in reading the poem, might affect how you read the poem. And I suggest the Constitution is the same way. Every time we see a Supreme Court nominee come on board or even in a presidential election, we hear calls for strict reading of the Constitution, judges that aren't going to color outside the lines.

And the point - one of the many takeaways from the book is that the Constitution is rarely black and white. There are underlying themes, one of which is accountability. Nobody's above the law. Nobody's the boss of all the bosses in our government. But other than that, rarely, rarely can we have a plain reading, obvious interpretation of the Constitution.

MARTIN: Which, we should just say, is unsettling to a lot of people, right? I mean, if you think about interpreting a poem as the same as interpreting the Constitution, that feels dangerously ambiguous for something so important.

WEHLE: I think it - and I get this with my students a lot. They want answers. You know, I teach law students. And I tell them, if you could Wikipedia the answer to the question, no one's going to pay you to do your job as a lawyer. It's a lot of gray area. These days, a lot of the questions that are being posed by this administration and the current Congress are not answered anywhere in the law. The Supreme Court hasn't addressed these at all.

And so we can hypothesize as to what the proper answer is. We can have debates about it. But there really isn't sort of a thumbs up or thumbs down on a lot of this stuff.

MARTIN: So is it fair to say that you wrote this because the Trump administration has provoked so many questions about the Constitution that just haven't been part of our public discourse in this way before?

WEHLE: That is why I actually started writing. I have a contract for a very academic book that - the audience are other academics. And I found myself writing for regular people. I think it's really important for people to be educated about not only their constitutional rights, which is one part of the Constitution, but the structure - the structure of our government. And if we allow the government to consolidate power in one branch, one man, one party, then our individual rights break down.

So it's that message that, I think, is often lost in the kind of day-to-day discourse about whatever the latest, you know, tree that's on fire in the forest. I like to focus on the forest.

MARTIN: All right. So to that end, let's get into some specifics. The president's role is defined in Article II of the Constitution. You write that the core function of the president, according to the Constitution, is to execute the laws. But there's a lot of flexibility in that, isn't there?

WEHLE: Yeah. So I think most people are surprised the Constitution doesn't say anything about separation of powers or checks and balances or even the separation of church and state. But the way it's broken down is there are three clauses - vesting clauses - of the Constitution. The legislative branch makes laws. The executive branch enforces those laws. That's what the Constitution says.

That being said, there's a lot of squishiness in the Constitution. And this is where we have to be quite vigilant to make sure that each branch doesn't step over - too far over the lines of what it's supposed to do and that that branch, when it does, gets checked by the other two branches and, ultimately, by the voting public.

MARTIN: How do you see that - the issue of enforcing laws as being germane to this particular political moment in this administration?

WEHLE: Well, we see it, I think, a lot with migrants at the border with Trump making the announcement there's going to be widespread enforcement of immigration laws. That is a determination, again, that individual prosecutors, leading up to the president, get to make. And the American public can say, listen. That's not what - that's not what we want our government to do. And the response to that would be to, of course, vote a different person into office.

But I think the bigger issue these days has to do with Congress being feckless, really, in enforcing its own prerogative of oversight of the executive branch. We've seen not just under the Trump administration but for decades, a steady accumulation of power in the presidency. So Congress has to, itself, be vigilant to ensure that it retains its authority through the public to make sure that we don't have a king in this country because, fundamentally, our founding fathers and mothers didn't fight and die in the Revolution to make sure there was more power in the presidency.

MARTIN: You talk about the fragility, in some ways, of the Constitution, that it becomes - certain transgressions in our society can become - like jaywalking. Like, people do it because they know they can't get caught because there's not a cop everywhere to hold them accountable.

WEHLE: Yeah. And, again, the framers of the Constitution understood this, that it's human nature to amass power and that that's why we have this three-headed monster of government. We don't have a single one because the idea is no one's above the law. If this president crosses a legal boundary, crosses a norm boundary - a historical norm of behavior - and there's not a consequence, all of a sudden - what I say in the book - that tool goes in the president's toolbox for utilization by a future president. It might be a Republican president. It might be a Democratic president. That president's going to have that much power.

So if you're on Team Trump or you're on anti-Team Trump, it's sort of irrelevant. You have to say to yourself, how comfortable am I with my worst-case-scenario president having this amount of power in his or her toolbox? If that gives you concern, then I think you're one of the many people who should join me in this concern about the structure of our government sort of falling apart right now and moving - slipping into something that is certainly not consistent with how this country was founded, which is small government not big government.

Individual people have the power. Government power has to be constrained. It's not a political thing. It's not blue and red. It's right and wrong at this point - and right and wrong in terms of protecting freedoms for our children and our grandchildren.

MARTIN: Kim Wehle - the book is called "How To Read The Constitution - And Why."

Thank you so much for talking with us.

WEHLE: Thank you, Rachel.

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