Feldman: Constitution passing the Trump test

As Donald Trump’s administration enters its ninth month, it’s worth considering a surprising possibility: Things have never been better in the turbulent period since the president took office.

Trump’s most blatantly unconstitutional actions, like the travel ban on immigrants from a number of majority Muslim nations, have been blocked by the courts. Steve Bannon, Mike Flynn and Sebastian Gorka are out of power. The reasonable generals (John Kelly, H.R. McMaster, James Mattis) are in. The repeal of the Affordable Care Act has failed (so far). A deal with Democrats on DACA, the policy allowing undocumented immigrants brought to the U.S. as children to stay, is in the offing. There will be no new wall, paid for by Mexico or otherwise, on the southern border. Dangerously extreme tax reform seems unlikely to pass.

The point is not to play down the worrisome and downright bad events of 2017 thus far, including the fruits of mistaken Trump administration policy and (in my view) even some potentially impeachable offenses. Nor is it to ignore future risks.

Rather, this is a moment to appreciate that the U.S. Constitution is undergoing a stress test — and it’s doing pretty well.

The independent judiciary is withstanding a series of unprecedented assaults from the executive branch, both symbolic and actual.

The separation of powers, which requires Trump to work with Congress, is forcing the president to tack toward the center if he wants to get legislation passed.

And public opinion, which guides constitutional government against the backdrop of future elections, is pushing Trump to remove the most radical visible members of his administration and enhance the power of more moderate, responsible adults.

Put another way, Trump broke the recent norm of Republican presidential candidates by running to the right, not to the center. And he’s still pandering to a right-wing base in his rhetoric. But when it comes to government, he’s slowly but surely starting to act more like a centrist.

Trump has had some normal interactions with the judicial branch when it comes to appointments. He has added a highly conservative justice, Neil Gorsuch, to the U.S. Supreme Court, which may be his most lasting contribution to conservativism.

Similarly, Trump’s lower court judicial nominees have for the most part been sober and qualified. They’re conservative, to be sure, but that’s perfectly normal for a Republican president blessed with a Republican Senate.

The existing judiciary has given Trump no ground at all when it comes to his attempts to expand executive power illegitimately or in the exercise of racial bias. This despite — or maybe because of — Trump’s dangerous Twitter attacks on judges and the very notion of judicial authority. The pardon of Joe Arpaio, the former sheriff of Maricopa County, Ariz., is the most extreme instance of contempt for the rule of law, but it hasn’t cowed the judiciary.

Then there’s Congress, which for different reasons hasn’t given Trump much of what he has wanted thus far. It’s important to remember that this is the most crucial element of the separation of powers.

That a Republican Congress hasn’t given Trump a major legislative victory in eight months is a kind of miracle of constitutional design.

Trump’s failure to get the Affordable Care Act repealed is therefore partly caused by the constitutional structure itself. Ditto for his need to go to the Democrats to pass legislation to keep the government funded and provide hurricane aid.

Trump himself is protean, able to sympathize with radical populism even while entrusting economic policy to investment bankers. He won’t give up the goal of preserving his far-right base by symbolic means. There will be more events like his dog-whistling after the Virginia white supremacist rally in the future.

Yet when push comes to shove, Trump has to accomplish things to get re-elected. And the nationalist policies pursued by Bannon aren’t realistic or advisable.

That explains the rise of the disciplined, more moderate, even technocratic generals in the administration.

This, too, is the effect of our constitutional system’s embrace of first-past-the-post elections. Trump found a way to activate the far right in the election. But they can’t re-elect him on their own.

So don’t celebrate Trump. But do celebrate the Constitution. It’s being challenged. And it’s doing all right.

Noah Feldman is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. He is a Bloomberg view columnist.