The Law and Politics of Cabinet Officials Defying the President

• In Event: Constitutionalism in Comparative Context: Germany, Latin America, and the U.S.

Abstract

Constitutional law has a formal and straightforward line that Cabinet officials and White House Staff must obey the President’s orders. To disobey is unconstitutional.

But the actual reality of these official’s understandings is far more complex. The most prominent eye-catching examples of this are the many examples of resistance—often outright defiance—by Cabinet officials and the highest level of White House Staff to President Donald Trump’s orders. But even more generally, there is clearly a much more complicated game of delay, threatened resignations, ultimatums to be fired, that have a long history that predate Trump. These actors believed their actions could be explained or justified or were rooted in some messy intertwined combination of general ethics, professional ethics, statutory law and constitutional law that stands totally outside of conventional and narrow doctrinal understandings.

This paper zooms out from the discussion of defiance of Trump to discuss a wider variety of historical examples to develop a theory of when and how Cabinet officials or senior White House Staff should defy the President.

Author

• Joshua Braver, University of Wisconsin