No, the Federal Government Is Not A President's Private Property to Do With As He Wishes

The Constitution is supreme—not the president.

Current events impel me to examine a concept that is important but familiar mostly to people in political science and law: sovereignty.

The simplest definition of sovereignty is that it is the highest or ultimate authority in a political system. A more extended definition is here.

We sometimes hear the phrase, “the sovereign states,” but it’s more of a throwback to the Articles of Confederation than it is an accurate term. Under the Articles, “Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”

When the Constitution replaced the Articles, “We the People” vested sovereignty in the Constitution itself, no longer in the states, and not even in the federal government or any branch—not in Congress, not in the presidency, and not even in the courts.

Yes, each state is “sovereign” in the limited sense that it is the final authority as to the meaning of its laws and actions and their consistency with its own state constitution. However, the ultimate decision as to whether those state laws and actions are consistent with the U.S. Constitution lies in the hands of the federal judiciary. The states, therefore, are not “sovereign” in the strict sense of the term.

The principle here is that by vesting sovereignty—ultimate authority—in the Constitution, “We the People” have established it as what we call fundamental law, which means that any act of a legislature, an executive, or even the courts that is contrary to the Constitution is null and void.

As Chief Justice John Marshall famously stated in Marbury v. Madison, “Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.”

He thus concluded: “If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

As “fundamental law,” then, the Constitution is the normative standard against which the actions of all officeholders and institutions at the state, local, and federal levels must be judged.

This is the president’s oath of office: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Similarly, the oath of office taken by U.S. Senators and Representatives alike states in part: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same . . . .”

Clearly, these oaths of office are to the Constitution and NOT to any political figure or institution—not to the president and not to Congress, neither of which is our ultimate authority.

When, therefore, CNN reports that “President Donald Trump has privately complained that the Supreme Court justices he appointed have not sufficiently stood behind his agenda,” such a complaint indicates a profound—deliberate?—misunderstanding of the nature of the American political system. It’s not the role of the courts to stand behind any officeholder’s agenda.

The House and Senate may represent the people of the country each in its own way (as districts or states), as does the president (as states). But due to the principle of fundamental law, the courts represent the Constitution.

It is not the job of the courts to facilitate any president’s agenda. The courts are our Constitutional umpires or referees; their job is to ensure that the game is played according to the rules. It is not the job of umpires and referees to support any team, and it is certainly not the job of the courts to support the agenda of any officeholder of any party at any level of our government.

The New York Times reports that “As he lashed out at Mr. Musk for disloyalty, Mr. Trump threatened to cut off the billionaire’s federal contracts in retaliation, effectively acknowledging what his critics have long said, that he looks at the government as his personal instrument for dispensing favors to friends and penalizing those who cross him.”

Mr. Trump’s presidential victory in 2024 does not convert the federal government into a unit of the Trump Organization, nor is the federal government a tool to be used to benefit any president’s supporters or to hurt his opponents.

Our dangerous political problem today is that many Republican members of Congress appear to think that their oath of office was to the president rather than to the Constitution. Were the shoe on the other foot—a Democratic majority believing their oath of office was to a Democratic president—the danger would be the same.

No president is the ultimate authority in our political system; the Constitution is.

Considerations of power in our political system are supposed to be subordinate to the Constitution. Our danger today is that there are too many politicians apparently willing to subordinate the Constitution to considerations of power. That violates their oath of office.

Beware of people who wrap themselves in the Constitution to justify undermining it. Will Americans hold them accountable? At this point I am not optimistic.

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