A recent article in the New York Times “The Strategy Behind Trump’s Defiance of the Law” by Jeannie Suk Gersen (February 13, 2025) has prompted clarification. The question is whether a leader can legally violate the laws of his country.
In my opinion the manoeuvres of the president are no more than an exercise of his rights, the interpretation of which is debatable. Though there is a tendency to glamorous the exercise of those rights as Oliver Wendell Holmes, Jr. did in an essay from 1897, “the prophecies of what the courts will do in fact, and nothing more pretentious”, the less glamorous reality is that the exercise of rights is a gamble based upon what ultimately the Supreme Court will interpret.
As a Canadian lawyer my sole educational exposure to matters of this nature has been a study of Canada’s constitutional law.
The British North America Act received Royal Assent on 29th March 1867 and went into effect 1st July 1867. The Act united the three separate territories of Canada, Nova Scotia and New Brunswick into a single dominion called Canada.
The creation of our country was in essence no more than the collective act of a number of people. The governance of the country was determined to divide between general and specific matters, highlighted as Ss. 91 and 92 of the British North America Act (what later became the Constitution Act).
s-91 It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.
s-92 In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
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13Property and Civil Rights in the Province
I have chosen to highlight Subsection 13 because it is the basis of most argument (strategy) between the federal (S. 91) and provincial (S. 92) governments. I am guessing the United States of America has a similar constitutional prescription which distinguishes the rights of Congress (federal) and the rights of States (provincial).
An example of Canadian debate arose upon the discovery of oleomargarine. Its use as a butter substitute precipitated enormous interest from commercial sectors across Canada. The governance or control of its use was hotly argued between federal and provincial authorities, prompted by the provincial profit interests and contradicted by the federal Peace, Order and Good Government (POGG clause) interest; that is, a conflict between general (federal) well being and specific (provincial) profit interests.
This article examines the rhetoric employed in the 1917-1924 debates over oleomargarine’s legalization in Canada, noting that health, extending from the individual to the collective body, emerged as a key battle cry. Oleomargarine was at once a tool of citizenship and a nexus for new theories of food science, anxieties about race and otherness, women’s emerging political influence, and contention about the roles of both industry and government in dictating food choices. As both sides promulgated their respective products’ contributions to personal and national welfare, health and citizenship stood as entwined ideals, inviolable but not uncontested.
By comparison matters relating to ownership of land and disposition of one’s estate were deemed to come clearly within the provincial legislative ambit of “Property and Civil Rights”.
Betwixt these two levels of constitutional authority (general/specific or federal/state) there exists untold interpretation. There is nothing particularly strategic about Trump’s actions unless and until he seeks by virtue of popular mandate either to change the governing law or simply step over it. As a confirmed litigator he also knows the value of prolonged and expensive litigation, a reflection not of any legitimate authority other than bloodymindedness and refusal to compromise. But hot button issues such as those captured by MAGA (immigrant felons, widespread drug use, unconventional sexuality, overspending nationally and internationally) inspire ready ammunition for advancement of what is determined to be within the bailiwick of the federal government (which, in the case of Canada, is for the Peace, Order and good Government of the whole).
Accordingly if I were attribute anything to “The Strategy Behind Trump’s Defiance of the Law” it is no more than a debating tactic to employ the ready nutrition of a good argument which conveniently enjoys the applause of the American majority (and therefore embellishes the strength of the argument without corrupting the law). If, on the other hand, he were to go beyond what the Supreme Court (the highest court in the land) determines to be the most compelling argument, then he dangerously invades the true marshland of oligarchy and autotocracy. It wouldn’t be the first civil war in the United States of America.