Monday, February 13, 2017

Is There A Trumpian Constitutional Crisis Looming? Be Careful What You Wish For.

There is a lot of wishful thinking going around that the infant (both meanings) Donald Trump administration is lurching toward a constitutional crisis.  Never mind that most of us wouldn't know a constitutional crisis if we were to be hit on the head by one.  The upside of a constitutional crisis is that it might hasten Trump's exit, while the downside is too awful to comprehend. Perhaps a terror attack on the homeland provoked by his bullying that would unleash government-sponsored atrocities for political gain making the post-9/11 fallout -- curtailment of civil liberties, widespread eavesdropping on Americans, black site prisons and the torture of innocents -- seem minor by comparison. 
Am I being hysterical?  Not when the decision of a department store to drop Ivanka Trump's clothing line is framed by the White House as a "direct attack" on the policies of a president showing every sign of being over his head and out of his mind. 
According to a couple of political scientists opining at FiveThirtyEight, constitutional crises come in four flavors.   Here they are in what I believe is the ascending order of relevance as to where we find ourselves:
SCENARIO ONE: The Constitution doesn't say what to do.  The beauty of this 18th century document is its brevity, but this means it doesn't offer much in the way of a 21st century instruction manual. This scenario may be most relevant as it pertains to its vagueness concerning presidential emergency powers, something that Trump has beaten his gums about a great deal when it comes to dealing with terrorism and ginning up fears real and imagined. 
SCENARIO TWO: The Constitution's meaning is in question.  In this respect, the Civil War was one big constitutional crisis, as were FDR's sweeping Great Depression relief measures and LBJ's unilateral escalations of the Vietnam War. The greatest relevance here is to impeachment, and what constitutes "high crimes and misdemeanors."  Bill Clinton was impeached on what at the time and certainly in retrospect were the flimsiest of grounds.  That won't happen here. 
SCENARIO THREE: The Constitution tells us what to do, but it's not politically feasible.  We recently have been reacquainted with the fact Congress and the Cabinet can remove Trump without impeaching him because of the 25th Amendment, but given the GOP 's hyper-dominance, that may be problematic unless Trump goes completely off his rocker by declaring martial law because of unruly town hall meetings or something equally pernicious. 
And the most likely -- or least less likely -- scenario:
SCENARIO FOUR: Constitutionally mandated institutions fail.  The greatest relevance here is that Trump has shown disdain for the system of checks and balances, including disturbing reports of Customs and Border agents, who are members of the Executive Branch, refusing to follow orders from the Judicial Branch during the days following the federal court injunctions against the Muslim Ban.  Oh yeah, and Trump could refuse to leave office if impeached.
Since the U.S. Constitution became the law of the land in 1789, there have been very few constitutional crises.   
Big deal, you say.  Well, maybe not when you consider that politicians and officialdom have had an overarching respect, if not downright awe, for a document that has been amended a mere 27 times (in 33 tries) and the last amendment not of a technical nature (like changing the voting age or tinkering with presidential succession) was adopted in 1920 with women's suffrage. 
All that changed with the election of Trump, who in a mere 24 days in office is straining democratic norms as the Founding Fathers spin ever faster in their graves.  (Beware of flying wigs.)  There will be a pushback, and at this point it is more likely to come from the grassroots than the feckless Democratic minority, but whether that provokes a constitutional crisis is another matter.   
Or as David Frum so somberly puts it in The Atlantic as he visualizes what a two-term Trump presidency might mean: 
"Those citizens who fantasize about defying tyranny from within fortified compounds have never understood how liberty is actually threatened in a modern bureaucratic state: not by diktat and violence, but by the slow, demoralizing process of corruption and deceit.  And the way that liberty must be defended is not with amateur firearms, but with an unwearying insistence upon the honesty, integrity, and professionalism of American institutions and those who lead them.  We are living through the most dangerous challenge to the free government of the United States that anyone alive has encountered.  What happens next is up to you and me.  Don’t be afraid.  This moment of danger can also be your finest hour as a citizen and an American."
My own scenario of the moment is somewhat more upbeat, at least on the front end, and goes something like this: 
While the worst outcome, in a way, would be the Donald Trump presidency becoming "Carterized," as one pundit put it; that is, unpopular, ineffectual, fractious and not going anywhere, the best outcome would be Trump becoming not a two-term president,  but a two-year president, as that mighty pendulum of American political history swings back hard and fast to the left with the Democrats riding the wave of a huge backlash to retake the Senate and House in the 2018 midterm election.  And promptly begin impeachment proceedings.   
We can then contemplate cuing Scenario Four. 

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