We need not pretend that constitutional and legal philosophies do not map consistently onto substantive political outcomes.
“The cause is in my will.”—Julius Caesar, Act II, Scene II
We ought to have known it would come to this. Still, the latest assertion of presidential authority assumes a new and ominous form: the power not merely to assert authority outside the law—which can at least masquerade under the banner of Lockean prerogative—but rather to redefine words and, with them, the institution of law itself.
Such is what happened when Vanita Gupta, the head of the Civil Rights Division of the U.S. Department of Justice, issued a menacing letter to Republican Governor Pat McCrory of North Carolina, ordering him to abandon the state’s new law requiring people to use public bathrooms associated with their anatomical genders. (McCrory quite rightly responded to her absurd five-day, stand-and-deliver deadline with a lawsuit. The DOJ sued back, with Attorney General Loretta Lynch shamefully likening North Carolina’s law requiring men to use men’s bathrooms to Jim Crow segregation.”)
North Carolina’s law, said Gupta, violated Title VII of the Civil Rights Act of 1964—and, for good measure, Title IX of the Education Amendments of 1972, which can be used, by means of an executive finding, to revoke more than $2 billion in federal education funds. These laws prohibit discrimination on the basis of sex, which, Gupta says, means gender identity.
Now, to dispense at the outset with the objective realities, sex does not mean gender identity and did not to those who drafted, debated or adopted the law. No serious person thinks it did or does. In fact, we have been relentlessly instructed by those who consider themselves enlightened that sex and gender identity are different things.
That, for now, is not the issue, nor is the question of who uses whose bathroom. Rather, this is: If Presidents can unilaterally redefine words, the stuff of which laws are made, to suit political convenience, is there anything they cannot do?
The administration has used Title IX as a weapon to impose all manner of unilateral policies on educational institutions, including shifting the burden of proof in sexual assault allegations to a “preponderance of the evidence” standard. This is administrative overreach, often of a dramatic kind. But at least it accepts, within some broad understanding of the English language, the objective meaning of words.
That has now changed. The recent action anoints the President as ideological keeper of the mother tongue. Consider: Title VII prohibits discrimination on the basis of sex, among other categories. It indicates the meaning of such words as “employer” and “religion” but does not—despite using the word more than 30 times—bother to specify the definition of “sex.” This is because everybody knows what it means.
Or did, before the administration embarked on the strategy of law-by-redefinition. This power to make words mean what they do not is a vastly more extraordinary assertion of presidential authority than anything the White House has attempted on health care, immigration, or education. A comparable leap would be understanding “health” insurance to mean “income” insurance, or “alien” to mean “citizen.” To the extent executives must understand laws to execute them, allowing the executive to redefine words to make them hospitable to its agenda makes Presidents universal and unilateral legislators.
This is linguistic, and insofar as words comprise laws, political Caesarism. “The cause,” Caesar declares in Act II, Scene 2 of Shakespeare’s play, “is in my will.” It is emphatically different from asserting, as President Obama did, that he had to issue executive orders on health care and immigration because the political process was broken. That was problematic for all the reasons it was problematic. But by sidestepping law, it at least left open the possibility of preserving the integrity of law because the law itself endured. This new tactic corrodes law by making its meaning a matter of presidential will.
It would be useful for someone seeking the office to challenge this conception of the presidency. But once powers accrete to a constitutional position, they do not easily depart it. They are simply turned to other purposes.
The particular tragedy of the GOP’s nomination of Donald Trump is that these powers are being turned so nakedly to personal will. It was thus appropriate that the same week that Obama’s Justice Department was redefining words, Trump, having gotten the most votes of any candidate in the Republican primaries and coronated himself, was revealing his plans for his first 100 days in office.
Trump promised the New York Times that he would not spend his first 100 days in office destabilizing the country, then revealed his plans for destabilizing the country in his first 100 days. “I’m running to move quickly to make big changes,” said the presumptive nominee who, eight paragraphs earlier, was quoted as saying he was “not running for President to make things unstable for the country.”
Trump’s “big changes,” unsurprisingly, do not appear to involve other branches of government, least of all Congress. Instead they entail the personal will of President Trump—who also treats the English language as something fungible. The unemployment rate, he insists, is 42 percent (it is objectively not). Obama, he repeatedly declares, is accepting 200,000 Syrian refugees (Obama is objectively not).
Applied to the words that comprise political slogans, this is called demagoguery. Applied to the words of which rules are made—as in the DOJ’s rulemaking of the moment—it is called lawlessness. Trump has learned well. Madison would be mortified. But Caesar would understand.