Let’s just get this out there today. It is absolutely impossible to make sense of President Trump’s actual policy intentions any more, except to say that he is on course to do something on every campaign promise he made to his base, regardless of the feasibility, rationality or constitutionality of those pledges. This marks the triumph of red meat, dog-whistle campaign politics well over the needs of actually governing a complex country in a complicated world.

Since January 20, it is as if the nation has been sealed inside a soaring jetliner while the pilot plays with the intercom. The co-pilot and flight engineer, meanwhile, fiddle with the dials after having tossed the flight manual out a window before departing. Meanwhile, the plane’s engines are now running at different speeds from the chaos; the flight attendants keep trying to serve breakfast and lunch simultaneously, and the oxygen masks have come down – but only for some passengers.

Flight controllers on the ground keep trying to reach the crew by radio to give urgent course corrections, but no one knows which frequency to tune to and the pilot is way too busy with the ship’s in-flight PA system to bother listening to anyone else. And maybe this nightmare vision pales before the reality of American governance right now.

Photo: People gather for a protest at the Arrivals Hall of San Francisco’s SFO International Airport after people arriving from Muslim-majority countries were held at the border control as a result of the new executive order by US President Donald Trump in San Francisco, California, US, 28 January 2017. According to reports, thousands of people took part in the demonstration as people from countries on the suspension list were reportedly held at the airport. US federal judge issued an emergency stay for visa holders and refugees that have been detained at airports following Trump’s executive order, halting all refugee entry for 120 days and for 90 days bans entry from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. EPA/PETER DASILVA

But enough of that onrushing apocalypse while we consider three constitutional phrases we’re going to hear a great deal more of in the coming months, as the Trump presidency picks up speed and spreads more chaos. The first is executive order; the second is the emoluments clause; and the third is, well, the presidential disability clause of the 25^th amendment of the US Constitution. Readers will need to know about these.

First up is the executive order. When Donald Trump ended US participation in the Trans-Pacific Partnership, set a hiring freeze of new federal employees, and reinstated the “Mexico City policy” preventing US government funding of abortions abroad, as well as his bans of Syrian refugees, restrictions on entrants from seven largely Muslim nations and extreme vetting of any future refugees, these were examples of his use of “executive power” – a broad but ambiguous set of prerogatives, courtesy of Article II of the Constitution. Based on that delegation, every president since George Washington has made use of this power. Section 3 of Article II of the Constitution, the part that deals with the chief executive, further directs the president to “take Care that the laws be faithfully executed”. In many cases, an executive order was a president’s way of carrying out unilateral actions under his “executive power” to do a kind of end-run around a recalcitrant Congress that refused to pass specific new laws the president wished.

Accordingly, an executive order is an official document, signed by the president, that sets out a specific government policy, giving instructions to government agencies and departments about how to carry out their jobs in particular circumstance, pursuant to existing federal law, and is usually in response to the powers delegated to the president by law. As a legally binding document, it is numbered and added to the Federal Register. Executive orders cannot reverse a law that has been passed by Congress previously. Moreover, a new president can issue executive orders that reverse such determinations of a previous president.

In recent two-term presidencies, Ronald Reagan issued 381, Bill Clinton 364, George W Bush 291, and Barack Obama 277. In 12 years as president, Franklin Roosevelt issued 3,721 of them, but there were obvious, extenuating circumstances – a global war and the Great Depression. For real gluttons, the following links should include all executive orders issued by the president: The White House; Executive Orders Disposition Tables (The Federal Register); and Fedlaw.

There is actually another term for the use of the powers of the president, an executive action. This includes executive orders as well as presidential proclamations, miscellaneous memorandums and proposals. Directives and memorandums are usually used to inform the various federal agencies of administration policy and they carry the same legal weight as an executive order, according to a determination by the Justice Department in 2009. However, proclamations are more ceremonial and do not have the same legal weight. A proclamation might be when a president declares “National Take Your Child To Work Day”. There is also a different type of specialised executive order dealing with national security and defence issues, generally termed “National Security Directives” or “Presidential Decision Directives”, under the president’s constitutional power as commander-in-chief.

The problem often occurs since so many executive orders have controversial aspects. Because there is no definitive language in the constitution about them, they often spark legal challenges. You only have to look at the public furore and speedy action by several federal courts – over this past weekend – in response to Donald Trump’s executive order of Friday, banning Muslims entry into the US from seven majority-Muslim nations and denying refugee status to Syrians, to see how that could happen. Since the constitution does not spell out specific terms for how and when they can be issued, executive actions are ripe for legal challenges.

Obama reversed via executive order an earlier policy by George W Bush on prohibiting US funding to international groups that used non-US funding to provide abortions. Donald Trump has taken an action to rescind the Obama decision. Then, too, Congress can poke its finger in a president’s executive authority by specifically restricting government funding for certain programmes or passing a law that specifically precludes an executive order from taking effect.

The nub of this difference is that a law must originate in Congress, be passed by both houses of Congress and then be signed into law by the president, per the constitution. Therefore, a law cannot be overturned by the unilateral action of a president through an executive order or other general policies. The challenge for the political leadership is that laws are not easy to accomplish, what with the debate and discussions that take place, as well as representations by interest groups with an itch or driving purpose to affect pending legislation. An executive order, as television addicts have now learned, can be issued with a signature and a smile.

Now, we move on to the emoluments clause of the constitution. What is that and does it apply to President Trump? Or, put another way, is he in a heap of trouble over it?

Again we go back to Article I of the constitution, the part that sets out the role of the Congress. Here it reads: “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” An emolument, for those who have not yet looked it up, simply means: a salary, fee, or profit from employment or office. In effect, there should be no double dipping by an official, except when specifically granted the right by Congress.

The drafters of the US constitution were well aware of the proclivities of British monarchs to issue backhanders to MPs in order to move legislation along, or to delay the passage of other bits of business. As a result, the constitution’s writers were bent on making sure outsiders – and especially oleaginous foreign agents – could not ensnare American officials to benefit nefarious foreign governments. The plots the Americans could see being hatched were already bad enough, hence the emoluments clause in the constitution.

We probably would not be worrying too much about this now, save for the fact that the new president has been running an extensive, privately held business with many (who knows exactly how many?) foreign involvements, partnerships, investments, debts, and the like. And, unlike other recent presidents, he has refused to put this empire into a blind trust while he is in the White House. Instead, he has put two sons in charge in a distinctly non-blind trust, while retaining ownership over it. As such, various foreign payments will be flowing into these entities from previous investments and partnerships. The danger is that some of these partnerships and investments are in conjunction (oops, almost typed “cahoots” there) with individuals or institutions that could logically be termed foreign governments and officials.

As David Fahrenthold and Jonathan O’Connell wrote in The Washington Post last week, there has already been some blowback action on this front.

“On Monday morning, a liberal watchdog group filed a lawsuit against President Trump, alleging he’d violated a previously obscure provision in the Constitution, the ‘Emoluments Clause’.

“The watchdog group, Citizens for Responsibility and Ethics in Washington, said that the clause prohibits Trump-owned businesses from accepting payments from foreign governments. They asked a court to stop Trump’s businesses from taking them now. ‘This cannot be allowed,’ the group wrote in its legal complaint.”

Not surprisingly, the new president called the suit “totally without merit”, on his first working day in office.

The two reporters added,

“Even if this case runs aground in court, there could be others. In fact, one of the parties best positioned to sue Trump might be the D.C. government — if D.C. officials decided it was worth the risk to sue the president.”

The clause itself has never been the subject of a major court case and it has never been the subject of a decision by the Supreme Court. Accordingly, there is some uncertainty what this clause means for 21^st century America, in comparison to Ben Franklin’s no-no in receiving an expensive snuff box as a gift while he was the rebellious colonies’ commissioner to France.

Still, as the reporters noted,

“The group that filed Monday’s lawsuit — whose attorneys include prominent ethics lawyers from the Barack Obama and George W. Bush White Houses — says Trump is in violation. Their logic is that the clause prohibits Trump from taking any money at all from a foreign state. To them, the clause prohibits not just straight-up gifts but also payments for services rendered. So it would prohibit a Trump-owned hotel from renting a ballroom to a foreign embassy and prohibit Trump Tower from renting out office space — as it already does — to a state-controlled Chinese bank.”

As a result, this suit asks a federal judge to prohibit Trump’s businesses from taking those payments – or else. As their legal filing said, “A federal officeholder who receives something of value from a foreign power can be imperceptibly induced to compromise what the constitution insists be his or her exclusive loyalty: the best interest of the United States of America,” the group wrote in its legal filing.” Trump’s attorney, Sheri Dillon, argued instead that the payments are simply for services rendered. She said, “Paying for a hotel room is not a gift or a present.” Trump has now promised to turn over profits from foreign government use of his hotels to avoid the possibility of turning such payments into gifts by those wildly overpaying for a ballroom rental or for some rounds of golf. But who knows how this would be calculated, given that the Trump Organisation has offered no details on how such payments would be tracked, collected and dispersed.

Going forward, a central question is whether the lawsuit would gain a victory in the courts, and there is even the question of whether the group has the legal standing to sue Trump in the first place. As the two Post authors noted,

“ ‘Just complaining about bad government does not give rise to standing — or you or I would have standing to challenge just about anything that goes on,’ said Erik Jensen, a law professor at Case Western Reserve University in Cleveland. ‘And the system just couldn’t work [in that case].’

“To have standing to sue, the watchdog group must show evidence it was harmed by Trump’s actions. The group says it can. The logic: Its workload has increased because Trump has given them new concerns to investigate. ‘The injury to the organisation is that it’s much more difficult to accomplish the organisation’s mission,’ said Richard Painter, a University of Minnesota law professor and former chief White House ethics lawyer for President Bush. He is one of the attorneys on the case and vice chairman of the watchdog group’s board. ‘Basically the administration has opened up a whole new avenue of corruption.’”

Even if the case fails to gain traction in the courts, the grinding on of judicial processes might force Trump’s businesses to turn over dumpster loads of documents detailing its dealings with foreign governments – and even those mysterious tax returns. All that, in turn, would open windows to allow watchdog group to focus on conflicts of interest and whom Trump owes money to around the globe.

Moreover, even if this watchdog group doesn’t succeed, it is possible business competitors – and there are lots of those – might well be able to demonstrate they have lost out on business “where Trump’s presidency benefits his company”, wrote the two journalists. “The owners of competing luxury hotels in the District include a range of large institutional investors, many of them from abroad. The Four Seasons in Georgetown, which lost thousands of dollars in business when the Kuwaiti Embassy decided to hold its National Day celebration next month at Trump’s D.C. hotel, is majority-owned by Anbang Insurance Group, a Chinese insurance giant affiliated with the Chinese government.”

Engaging in a legal fight with Trump is a difficult hill to climb for any business owner. Suing the president, particularly one who freely uses Twitter to attack businesses and executives, would be daunting. Thus, the best placed individuals might be elected officials tackling him on constitutional grounds, such as the mayor of the District of Columbia (Washington), Muriel Bowser, although she has said that she wants to be supportive of her new first citizen. However, the city owns the land under several big competitor hotels to Trump’s new flagship inn and Erwin Chemerinsky, dean of the University of California at Irvine School of Law and an American Constitution Society board member, has argued, “If D.C. can allege that it has lost economically because of the benefits derived from the Trump violation of that Emoluments Clause, then D.C. could sue. And the way to do that would be to show that foreign governments are sending business to the Trump hotel that would otherwise go to D.C.’s hotels.”

Well, then, to review, we understand that President Trump has some real leeway in managing the national government’s policies and plans, even though the courts are already working to roll back an executive order on Syrian asylum seekers and immigrants and visitors from seven majority-Muslim nations. In the face of aggressive public pressure against these decisions and the court movements, late on Sunday, the New York Times reported,

“A top White House official appeared to reverse a key part of President Trump’s immigration order on Sunday, saying that people from the affected countries who hold green cards will not be prevented from returning to the United States. But the official, Reince Priebus, the White House chief of staff, also said that border agents had ‘discretionary authority’ to detain and question suspicious travellers from certain countries. That statement seemed to add to the uncertainty over how the executive order will be interpreted and enforced in the days ahead.”

The paper went on to note, “A series of rulings by federal judges across the country blocked part of the president’s actions, preventing the government from deporting some travellers who found themselves ensnared by the presidential order. But the court decisions largely stopped short of letting them into the country or issuing a broader ruling on the constitutionality of Mr. Trump’s actions. Lawyers for those denied entry said on Sunday that there was significant confusion and disagreement among border agents about who was affected by Mr. Trump’s order. In a statement Sunday morning, the Department of Homeland Security said that agents would ‘continue to enforce all of President Trump’s executive orders’ and that ‘prohibited travel will remain prohibited’. But it also said that the department ‘will comply with judicial orders’.” In other words, no one really knows how this one is going to turn out yet.

The emoluments clause fight’s future is even less clear.

A victory on the emoluments clause might conjure up the word “impeachment” in some minds, if he chose to ignore the consequences of that lawsuit. But as students of history know, no president has faced the ultimate consequence of an impeachment and conviction for “high crimes and misdemeanours” – although several have come close, and Richard Nixon chose to resign rather than face the inevitable music.

But, for those who dream big about removing the new president, there is still another constitutional mechanism lying in wait out there, something perfect for feature film plots, like Harrison Ford’s, Airforce One, in which members of his very own cabinet asked the Vice-President (played by Glenn Close) to sign the document making her the new president. This is the disability clause in the 25^th amendment to the constitution.

It is now clear the new president has no intention of self-moderating his attitudes, behaviour and desires in his dealings with the nation and the world. It is equally clear he is happy to bend the truth until it breaks into a thousand shards to perpetuate his idea of reality. And given their behaviour so far, it is hard to believe his close staffers like Kellyanne Conway, Mike Flynn, Reince Priebus, Stephen Bannon, and Jared Kushner, together with his hard right ideologue of a vice president, will be doing anything much to rein him in.

One of this writer’s favourite columnists, Richard Cohen of The Washington Post, had it,

“It is folly to think that aides like Priebus are going to be able to moderate Trump. They are enablers, emptying their consciences and stuffing their egos, and it is even sillier to think that Trump himself will change. He is 70, into the years of ossification, and his political triumph has only convinced him of his inerrant correctness. He thinks he is infallible, a kind of secular pope, but possibly not celibate. Things will go from bad to worse.”

So, if impeachment must be ruled out unless he does something so egregious that it constitutes an existential threat to the nation, is there another path? In fact, there is something else to take a look at.

Under the 25^th amendment, designed to sort out who takes over when the president is disabled, but not removed from the scene permanently, the vice president, together with a “majority of either the principal officers of the executive departments or of such other body as Congress may by law provide” can remove the president for being “unable to discharge the powers and duties of his office”.

Now, if the emoluments clause can be a lawyerly paradise on Earth, incapacitation would be full employment to a brigade of them, slugging it out over every word. Still, this amendment gives a cabinet a real role in all this. Section 4 states, “Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.” It doesn’t say specifically whether this is limited to physical handicap – as in a debilitating stroke – or includes mental fitness. But, given the increasing acceptance that mental illness is very real, and the evidence on hand that the current president has more than a touch of narcisstic personality disorder, there may come a moment when the cabinet, no matter how loyal, will be forced to make a choice between their first duty to country or their loyalty to the man who appointed them.

Cohen concludes, “Is this going to happen? Probably not. We’ll just muddle through a Trump presidency, as we have some others. But the nature and malevolence of Donald Trump have to be borne in mind. He has shown little regard for the constitution, as exemplified by statements saying that by definition anything a president does is legal, and he is prone to vulgar statements and tactics. Recall that he was once the most prominent birther, evidence of either racism or a chilling willingness to pander to it. Recall also, as Meryl Streep did at the Golden Globes, that Trump mocked Serge Kovaleski, a physically disabled New York Times reporter, and then denied that he had done anything of the sort. Here was the bully in full repugnance. Here was the liar in full contempt for the truth. Since his election, Donald Trump has done nothing to allay the concern that he is unfit for the presidency. In about a week, he’ll assume the presidency with all its awesome power. Maybe the only thing that will constrain him is his own cabinet. Trump goofed. There are some good people in that room.”

So, what have we learned, class? Let’s review for the quiz. The new president has begun his administration with a range of dismaying executive orders, including those that have put the entire entry system into the country into chaos and disorder. Nevertheless, he has a wide swathe of power to issue rules and regulations, although the more egregious ones may be limited or overruled by court or congressional decisions. However, he may now be coming under an ethics cloud of serious proportions, going forward, in terms of the emoluments clause. Finally, while impeachment is very unlikely, despite the wishes of a growing number of his opponents after just a week’s worth of chaos or worse, there is another way that citizens – and sober senior officials both – should keep in mind, if it comes to it and there is no other way to save the republic. And that is the disability clause. Think about it. DM

Photo: US President Donald J. Trump waves as he walks across the South Lawn of the White House after arriving on Marine One, in Washington, DC, USA, 26 January 2017. Trump returned from Philadelphia, where he attended the House and Senate Leadership Retreat. EPA/MICHAEL REYNOLDS