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Prof. Roosevelt Q&A: Can our Constitutional system continue to function?

May 13, 2017

“The question,” Prof. Kermit Roosevelt explains, “is whether our constitutional system—designed by people who didn’t foresee the party system—can continue to function in an era of severe political polarization.”

Kermit Roosevelt, Professor of Law at the University of Pennsylvania Law School, works in a diverse range of fields, focusing on Constitutional law and conflict of laws. He spoke with Penn Law’s Office of Communications about the recent firing of FBI Director James Comey by President Donald Trump.

Penn Law (PL): Earlier this week President Trump fired FBI Director Comey in the midst of an FBI investigation into the 2016 Trump campaign’s ties to Russia. Is the firing legal?

Kermit Roosevelt (KR): Yes, it’s legal. The President, as Chief Executive, generally has the authority to fire anyone in the executive branch. The FBI director has, by statute, a fixed ten-year term, which is generally understood to mean that he can only be fired for cause. But cause existed, as Deputy Attorney General Rosenstein’s memo demonstrated. It’s an interesting question how much it matters that the firing seems pretty clearly to have been based on other grounds, namely a desire to shut down the FBI investigation of the Trump campaign, but I do think Trump had the power to do this.

PL: Are we in a constitutional crisis, in your view?

KR: Not in the sense that anyone is defying the Constitution. That’s one sort of crisis, where it’s not clear that Constitution will remain our highest law. I think there’s another sort of constitutional crisis, where the question is whether our constitutional system will keep working as it’s supposed to. And I do think we’re facing that kind of crisis.

The question is whether our constitutional system—designed by people who didn’t foresee the party system—can continue to function in an era of severe political polarization. We saw one manifestation of this with the Garland nomination, where extreme partisan behavior distorted the process contemplated by the Framers. We’re at another such moment: the way separation of powers is supposed to work, this sort of conduct by the President would draw a strong response from Congress. If that happens, then the Constitution is working the way it is supposed to. If it doesn’t, I think it would be fair to say that the party system has broken the Framers’ Constitution.

PL: What about cumulative impact over the course of this administration? That is, reporters and scholars began debating in January whether we’re in a constitutional crisis with Trump’s Executive Orders on travel and immigration from certain Muslim-majority countries, which federal courts struck down. Are our institutions functioning properly, and can they continue to function properly with what seems to be repeated tests of separate but equal branches of government?

KR: We are basically seeing the same question over and over again: can separation of powers work in an era of political polarization? Members of Congress are supposed to feel loyalty to Congress, and to America, and to protect both the authority of Congress and the national interest against presidential overreach. It seems, though, that those loyalties are overwhelmed by party loyalty, which makes Republicans in Congress line up to protect a Republican president. The federal courts, happily, seem a bit less susceptible to partisan capture, which is why we’ve seen more of a pushback from the judiciary. Of course, that’s one reason the refusal to consider Garland was so troubling, because it suggests a very serious effort to capture the judiciary for partisan ends.

PL: Do you see other, similar tests of our nation’s institutions in the months ahead?

KR: I think this fundamental question will keep coming back.  Do we think our primary allegiance is to our political party, or can we set party aside and put America first?