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Sunday, July 23, 2017

Yonatan Zunger:Medium -- The Present Crisis


Yonatan Zunger

There is one thing certain about the political crisis in the United States today: when it ends, the Constitution will be profoundly different. Either we will make major changes to it — through amendment or through rewriting — or it will become a mere decoration, a relic of a history which no longer applies. But the system that we have grown up with, the particular powers of each branch of government, has already come to an end.

While it's hard to put a precise date on that ending, I would pick January 28th, 2017: the day of Donald Trump's first Muslim Ban. I'm not picking this date because the ban itself was particularly abhorrent, but because it represented the first genuine constitutional crisis of the present situation, a moment where the system itself had no idea what to do.
To refresh your memory: Having issued the order, Customs and Border Patrol (the CBP) had started to detain nationals of the seven affected countries as soon as their planes touched down, including legal permanent residents of the US, with the intent of deporting them on the spot. Even though courts around the country were issuing injunctions ordering the practice to stop immediately, CBP did not do so, and they continued to detain people, deny them access to counsel, and deport them throughout the night.

The reason this was so important, and so profoundly dangerous, is that every single enforcement agency in the Federal government ultimately rolls up to the President; neither the Congress nor the courts have any enforcement power of their own. Even the US Marshals' Service, often raised as a counterexample, is actually a part of the Department of Justice; they are simply tasked with enforcing court orders.

Had Trump not backed down that night, the Marshals would have been faced with an impossible decision. If they had gone along with the President's orders, the President would be above the power of any court to contradict; and having set such a precedent, it would be very hard to pull it back afterwards. But if they remained loyal to the law and went to enforce that decision, they would have found themselves at airports facing CBP agents who were (even with lawyers descending on the sites in droves) continuing to openly flout the court orders. This would not have been a mere constitutional crisis; it would have been an armed standoff. There would have been no good ending.

Protesters at San Francisco Airport attempting to block enforcement of the Muslim Ban, January 28th, 2017 (Associated Press)

That moment demonstrated just how fragile our system really is. The only power any branch has over the President which is not ultimately rooted in the enforcement power of Executive police agencies is the power of impeachment. Everything else, the President either has de jure or de factopower to override. (Special prosecutors were an exception to this until 1999.)

I don't think Trump had anything in mind as complex as testing the limits of Constitutional authority; he wanted to see what he could get away with, and how people would react, and he used that information later to see if he could get away with more. It's very simple, and it's been his M.O. for his entire life. It was, in short, an experiment to see how much power he could seize, an attempt to go as far as he could to see if anyone could actually stop him. This is why I referred to it as a "trial balloon for a coup."


Today, the constitutional crisis has only deepened. The problem is simple: the President continues to openly and brazenly flout the law (with his open self-dealing through "golf vacations" and through his family's businesses, and with his senior appointees' near-weekly habits of perjury, being the least controversial examples), and his essential argument is that no-one can stop him, so it must be legal.

What's troubling is that, to a great extent, he's right. The only power anyone has over the President which does not ultimately rely on the President himself to enforce is the power of impeachment. This has rarely been an issue in the past, because custom, shame, and basic honesty have kept Presidential power in check; Jimmy Carter famously sold his beloved peanut farm rather than have any business holdings that could be portrayed as a conflict of interest, and even Richard Nixon never used his pardon power to protect the Watergate conspirators.

But the power of impeachment is limited by the willingness of Congress to act, and for structural reasons, that no longer exists. In the mid-1990's, Gingrich's opposition party in Congress started to take on the role of "spoiler," shutting down the government rather than making a deal that didn't satisfy all their requirements. In the years following, Gingrich and others developed a strategy in which dealing across party lines was tantamount to treason. This meant that Congress' ability to get anything done fell apart, and a sequence of presidents (of both parties) had to turn to increasingly creative means to bypass them. And as that further weakened Congress, legislators increasingly saw their power not as the ability to pass laws (which was hopeless), but as the ability to either back or oppose the party leader — the President.

In short, Congress has spent the past twenty years weakening itself, reducing itself from the primary source of power in the government to a backup squad for the Executive. This is why in February, after National Security Advisor Michael Flynn's activities as an illegal foreign agent came to light, Sen. Rand Paul could quite naturally say "I just don't think it's useful to be doing investigation after investigation, particularly of your own party. We'll never even get started with doing the things we need to do, like repealing Obamacare, if we're spending our whole time having Republicans investigate Republicans. I think it makes no sense." The idea of an investigation as being about the power of Congress over the President is actively alien to Washington today; investigations have, for decades now, been about the power of party over party.

What this means is that today, it's hard to imagine anything which would cause Paul Ryan to call for an impeachment vote. Trump's statement in early 2016 that he "could stand in the middle of 5th Avenue and shoot somebody and… wouldn't lose voters" has turned out to be prescient: today, if he shot someone in the street, we would be treated to the same dance we've seen with every previous malfeasance of the past six months. (First Presidential spokespeople would deny it; then, Democratic members of Congress would decry it as clearly the last straw, while a few Republicans would say it was "clearly concerning;" then, talking heads explaining why it's a non-story, until Trump himself, most likely, would publicly tweet bragging about having done it; then, the same Republican Congresspeople explaining how it was technically legal and within the purview of the President; then, the next news story.)

The fact is that, for a powerless Congress, the only power possible comes from having their own President in office; anything which jeopardizes that jeopardizes their own ability to pass their favorite legislation. And there is no incentive left to counterbalance that.

It is possible that Mueller's investigation (if it isn't stopped by Trump in the next few days) will come out with evidence so damning that it makes even Paul Ryan blush, but I would not suggest you bet any money on that.


What does this mean for our country? It means that we are now firmly in a place where the Constitution no longer offers any meaningful solutions. We have run into a basic bug in the system which the Founders didn't anticipate: that Congress would become subservient to the President, effectively eradicating the only surefire check on that power.

While that's not a shocking bug in retrospect, we should respect why the Founders didn't predict it: what they were doing was literally the first attempt ever at building a constitutional democracy at scale. Nobody had any experience with this, and the fact that what they built lasted for nearly 228 years is quite impressive. But we should also recognize that no other constitution in the world is this old; every other democracy since then has had its government collapse, or otherwise required massive changes to its system, at least once. France — our democratic younger sibling, inspired in 1789 to its own revolution — is currently on its Fifth Republic. The Fourth was ended by public referendum in 1958; the Third, by the Nazis in 1940. France, like many other countries, has changed its political structure both by force and of its own free will.

For America, this idea is hard to comprehend, since so much of our national identity is tied up with the very concept of the Constitution. If we are not the country founded in 1776, then what are we?

But we should remember that we are not the country founded in 1776. We are actually already in (at least) our second Republic; after the Revolutionary War, we were governed by the short-lived Articles of Confederation. The Constitution that we use today replaced it in 1789. And arguably, that Constitution was deeply changed between 1861 and 1877, with not only new amendments which fundamentally changed the relationship between the States and the Federal government, but a deep reinterpretation of many of its earlier provisions as well. (Even the modern notion of the "right to bear arms" as an individual right is a post-Civil War idea!)

And today, the Constitution — in either its 1789 or 1877 form — has broken. There is a President who claims to be above the law, and there is no mechanism in place which can contradict him. If this persists, the Constitution is no longer meaningful except as history; if it does not persist, the Constitution must be changed.

In an American Third Republic, we should consider that many ideas which seem "obvious" to us today about how our government is run — not merely the Electoral College, but even the idea of a President elected with powers separate from Congress — may change. This is not a failure of democracy, but rather its best function: the ability to fix itself when it breaks.

The experience of other countries in drafting their own Constitutions, often under either American guidance or the guidance of those who we ourselves guided in the past, may often be instructive. It can be useful to define certain "super-Constitutional principles" which are even more fundamental than the Constitution itself: in America, for example, the freedom of speech, religion, and association, or the right to due process of law, would be obvious candidates, things which we consider to be not merely political decisions but fundamental to who we are as a people.

It may also be useful to take the idea of checks and balances and turn the knob even higher than we have in the past; for instance, no democracy in the modern world gives as much power to their executive as the President of the United States has today. And certainly nobody grants legislatures the power to draw their own electoral districts!


But we should not jump to drafting a new Constitution yet. We are watching the fall of the Second Republic, not yet the rise of the Third; extremely powerful forces would be violently opposed to anyone trying to rewrite the Constitution today, especially if it were for the purpose of deposing Trump. What comes next is not a Constitutional Convention, but rather a process during which the democracy we grew up with finally collapses; a process in which the power which has steadily accumulated in the hands of the Executive increasingly turns to serving its own interests, and abandons even the pretense of public service.

What happens between where we are now and the end of this situation remains unclear. The only thing clear is that there are no legal mechanisms which will end it; what happens next depends entirely on informal processes, on things like the public pressures which causes Congress and Trump to do one thing or another. Impeachment, for example, will not happen by any laws of nature; it would only happen if public outcry were so severe that Congress felt it had no choice. The 2018 and 2020 elections may or may not have any effect, when they come; if they end up being rigged in any number of legal or extralegal ways, they certainly will not. But those are still far away: even the voter suppression efforts are only just beginning. We are only, after all, six months into the age of Trump.
John Case
Harpers Ferry, WV

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