The Junta Presidency: Character and Constitutional Destiny in the Branch Apart.
I have been searching the Constitution for what I call “early warning systems” of the breakdowns in our democracy or republican (small r) form of government. I am still looking. More so after “impeachment nullification.”
Like most provisions of law or rule, our Constitution is premised on the unspoken assumption of good faith compliance with institutional norms and presumptively regularized behavior. And while the oath of office has now become a ritual show of fidelity, it still acts as a political device for belief there is an enforcement mechanism for the duties of the office. In reality, there is none but the conscience of the officeholder.
And while the Constitution assumes some conflict will necessarily exist based on political differences between the branches, it is unclear that it contemplated how to deal effectively with any one actor in the constitutional system who would persist in criminal or extra-constitutional behaviors.
Yes, the Constitution provides for impeachment. But this country still has never removed any president from office by that method. Richard Nixon resigned to avoid testing history’s precedent.
Now, in large part, because of the seemingly corrupt political calculation that led the Republican-controlled Senate to not convict Donald Trump, we can ask what other constitutional consequences face an incompetent and autocratic Executive. The only remaining remedy it appears is a deafening rebuke at the polls.
Perhaps, history will teach us a different lesson but our current test may not allow us to await its wisdom.
That test now is whether after the nullification of impeachment and removal whether the constitutional limitations are mere pointless aspirations or susceptible to vindication by Congressional and judicial review.
After the experience of impeachment nullification in the face of glaring evidence of impeachable offenses, Mr. Trump acts with a new and brazen impunity. In this he is teaching history that the office of the presidency will be viewed as a means of mere personal aggrandizement — and one antagonistic to the co-equal branches of our government.
The question then will be asked by history, not only whether both houses of Congress have weakened themselves (I believe they have), or if the Presidency has now become a reprobate “constitutional adversary” within our scheme of government that now must viewed as the “most dangerous branch.”
No matter who occupies the office in the future, what may be left of the permanent institution of the presidency after this present occupant leaves office is the fear within the other branches; fear that their constitutional prerogatives will be constantly under threat by executive action. This will necessarily present major challenges to any new president who seeks to occupy the office Hamilton argued must be characterized by “energy in the executive. “
Having too long ignored (and now condoned on the part of the Senate) the lawless and extra-constitutional actions of this executive, the office of the presidency will likely be permanently damaged and harmfully diminished. It will or may already have become a branch apart — if not a branch alone.
It will be the job of the next incumbent to strengthen the common goals of the three branches through strengthening the purposes of the Constitution and of federalism, while leading through the practical crises of governing. That can only be accomplished by restating a commitment to the rule of law and the process of constitutional cooperative democracy.
The Framers, I believe, understood that checks and balances were not alone the objective of divided powers; undoubtedly the branches’ individual roles and obligations were also intended to enhance the efficiency of all through the expertise of the others.
Likewise, the advice and consent function was one of the examples of the branches coming to the “constitutional aid” of the others. But this process cannot thrive in a reign of constitutional antagonists.
Thus, if the Presidency becomes isolated by either the personality and/or (lack of) character of the occupant, or by the incumbent’s singular commitment to extra-constitutional behavior and lawlessness, the support from the coordinate branches necessarily dissipates and wanes. And, the Presidency becomes the branch apart.
The Framers perhaps did not expect that the President could long act without support of the co-equal officers in government.
Perhaps, they could not foresee the era of modern communications and overawing emergency powers.
Yet, now we are experiencing perhaps for the first time the temporal and political outcropping of a Presidency operated in direct antagonism to its co-equal and coordinate branches. But that is not the only concern.
By now allowing a President to openly trample constitutionally-established norms; by permitting him to pretend that Article Two is a prize or license to arrogate power to an individual and his nepotistic followers; the Presidency becomes dangerously redefined — not only as a branch apart, but as an untrusted (or unworthy) partner in constitutional government — relegated to the impermanence of a “junta” — instead of an office of trust.
Now, in the acts of this President and the countenancing of his actions, including through impeachment nullification, the presidency has plainly become the branch apart.
We must inevitably ask ourselves is it now too late for the damage to be undone?