With Trump, the Media Strike a Pose as Sticklers for the Constitution
Hey, how about a rousing three cheers for the media's sudden interest in the Constitution? Maybe a Bronx cheer is more in order.
It’s hard to think of another issue that better exposes the double standard in mainstream media political coverage.
When Barack Obama was president, most members of the media apparently believed in a fluid interpretation of the Constitution. Constitutional sticklers were dismissed as dinosaurs or worse—especially if they identified themselves with the Tea Party movement. Except for Glenn Greenwald and the occasional lonely voice or two, the ladies and gentlemen of the press raised barely a peep about the administration’s drone killings, even of U.S. citizens. Executive-branch rewrites of health, immigration and environmental law were met with a collective yawn in the Fourth Estate.
That attitude certainly changed quickly. Donald Trump has turned the mainstream media into strict constructionists, or so they would have us believe. The Constitution they sternly invoke against the new president’s moves is now one carved in granite with words bearing unimpeachably plain meaning in their favor.
This is happening even as Trump - whom they routinely cast as a Constitution-destroying authoritarian - puts forth a Supreme Court nominee, Neil Gorsuch, who is notably skeptical of expanding presidential power and by most accounts really thinks the document ought to mean what it says.
Clearly, irony is alive in the land.
And even if it feels as if the acrimony couldn’t sear any further, the constitutional battles royal are just getting underway. This means the press – at least those who have already decided that the president is the love child of Mussolini and Big Brother – would be wise to hear not just the voices cheering them on, but those troubled by their blind spots and selective memories—not to mention tangible hostility toward President Trump.
Stipulating that Trump has been prone to intemperate remarks if not deeds regarding constitutional issues, a few headlines illustrate how eager anti-Trump voices have been to pounce, wielding the Constitution as a cudgel. “6 Ways Donald Trump Wants to Trample the Constitution,” proclaimed The Week magazine in June. “Donald Trump Does Not Believe in the Constitution,” declared Rolling Stone in September. “Donald Trump Has Broken the Constitution,” said the Atlantic in November.
“Broken the Constitution”? Months before Trump was even sworn into office?
Since Inauguration Day, marking the official commencement of open warfare between Trump and the press, constitutional hyperbole has only escalated as the media has invoked the cornerstone document seemingly at every turn.
Consider two representative issues.
Even before the inaugural balls got into full swing, the “emoluments clause” contained in Article I got a makeover from constitutional wallflower to belle of D.C. town. This constitutional stricture, banning foreign payoffs to government officials, is now the focus of a well-publicized lawsuit and is anticipated in some quarters as a possible basis for impeachment of the new mogul-turned-president who refuses to divest his empire.
Lost to memory are years of neglect or pooh-poohing of the emoluments clause during coverage of foreign lucre flowing to the benefit of President Clinton or Hillary Clinton - most recently when she was secretary of state and their foundation was accepting piles of cash from foreign governments. What gives? Never mind. I think I know.
Now controversy has moved on to Trump’s executive orders on controlling the borders, and here again the coverage raises questions.
The most important is: What rights under the United States Constitution do foreigners have when seeking to enter the country?
I’ve been wondering about that ever since Khizr Khan, the Gold Star father who lost a son in the Iraq War, waved the Constitution at the Democratic convention last summer and invited Trump to read the text, evidently hoping that the mogul would find immigration wisdom within.
I don’t know if Trump ever took him up on the offer, but I did. I didn’t see the words “foreigner” or “non-citizen” or “immigrant” or “refugee” anywhere in the document, nor mention of any right to enter the country.
It may be that policy or legislation or court precedents have created or divined such rights, but those are not what Khan waved at the podium. And, more to my point, that’s not something the media have bothered to explain in their copious sympathetic coverage of Khan – whose law practice includes securing visas for immigrants -- and others who pummel Trump as a constitutional transgressor.
Speaking of immigration, constitutional battles are building across the land as liberal states like California and “sanctuary cities” including Chicago and New York rise in resistance to the Trump agenda on border control, which he has moved to enforce by withholding federal funds.
Remember when Arizona stood up to the Obama administration in 2010 over its immigration policies and moved to enforce immigration law on its own? This was a time when the word “deplorables” hadn’t yet gained currency, so Republican Gov. Jan Brewer and her supporters were vilified in the media as “Tenthers” and, by implication, racists given the 10th Amendment’s association with the Confederacy and “states’ rights.”
“Yes, they're partying like it's 1861!” is how one writer described states’ opposition to the first African-American president.
Somehow I don’t think Gov. Jerry Brown of California will be impugned as a latter-day George Wallace as the left does a complete 180 and elevates the 10th Amendment and states’ rights over the “supremacy clause” of Article 6 and whatever else might have once been cited as justifications for subordinating states.
With the drama of the Gorsuch confirmation hearings in the Senate and much more yet in store, the one-sided coverage of such legal issues is disheartening.
The reason is that, gradually and over a long period of time, Americans have ceded authority to a steadily expanding, unelected administrative state that erodes the separation of powers envisioned by the Framers. This has resulted in governance not by a power-mad despot but by unaccountable desk jockeys.
The constitutional problems with this Leviathan deserve serious scrutiny, and it’s long overdue. The story cannot be well told through unsophisticated news coverage led by journalists who have squandered their credibility in much of America because of their own partisan blinders.
Tom Kuntz is the editor of RealClearInvestigations.