How a Glitch Caused a Crisis
We are in a constitutional crisis. It is not a looming crisis. It has already arrived, with the president’s declaration that he has the absolute right to pardon himself and his potential partners in crime, and the absolute right to stop any investigation for whatever reason he chooses.
We are in a constitutional crisis. It is not a looming crisis. It has already arrived, with the president’s declaration that he has the absolute right to pardon himself and his potential partners in crime, and the absolute right to stop any investigation for whatever reason he chooses.
The crisis is not that he has said these things. He is almost certainly wrong in his interpretation of the law and the Constitution. After all, Article II, Section 3 of the Constitution requires the President to “take Care that the Laws be faithfully executed.” Pardoning himself and his cronies out of corrupt motives would subvert the law. It would not represent a faithful execution of the law. None of the president’s enumerated powers, including the pardon power, or his oversight of the executive branch, or his power as commander-in-chief, entitles him to use those enumerated powers in a way that is inconsistent with his duty to faithfully execute the law. Moreover, in requiring the president not just to faithfully execute the laws, but to “take care” to do so, the constitution is requiring the president not to act on mere whim or impulse or grievance but deliberately and only for good and considered reasons. Failure to do so, is a violation of his solemn oath and an abuse of his enumerated powers.
The real question is who will hold the president to his oath of office. That is where the potential crisis lies. The reason we face a crisis has to do with a major glitch in the constitution, a glitch that is being fully exposed by Trump and the supine Republicans who control the Congress. The glitch arises from the fact that the Founders, in their limited wisdom, did not foresee, and perhaps could not have reasonably foreseen, the rise of hyper-partisanship of the sort we are now experiencing. Nor did they foresee—and perhaps could not have foreseen—the rise of what might be called the charismatic (in roughly the sense of Max Weber) presidency.
By that I mean a president, who by dint of his election by “the people,” could claim to be the true and singular voice and will of the people, considered as a corporate body. He is the single national office holder who is singularly placed to speak to and on behalf of the people. Against such a singular voice, the Tower of Babel that is the Congress is an anemic thing. And any individual Congressman is merely pissing into a howling wind.
The reason they did not foresee this is because they did not assign to the people, considered as a corporate body, any role whatsoever in even electing the president. The electors of the president were to be a tiny, tiny elite, chosen by the several state legislatures, by whatever means they happened to favor. The states were not and to this day are not even required to hold plebiscites to choose electors. And many did not. In fact, it wasn’t until 1876 that all states even held elections for not really the presidency but for their presidential electors.
Of course, the Founders did not foresee—they could not possibly have foreseen—the rise of a “de facto” national plebiscite for the presidency. And they could not and did not foresee what that gradual emergence of such a thing would mean for the standing of the president as a charismatic figure who alone would be positioned to speak to and behalf of the nation as a whole. Of course, in constitutional reality, thanks to the way the votes in the electoral college are apportioned, the president still isn’t elected by the people considered as a corporate body. And that raises its own issues. But that’s another unintended glitch in the constitution.
The glitch on which I am focused, and which is now being exposed, has to do with the fact that the Founders mistakenly assumed that Congress would be intensely jealous of and closely guard its institutional prerogatives when its interests and the interest of the executive were not aligned. They assumed, for example, that Congress would be determined to hold any president, who failed to see to it that the laws (which are the province of Congress and Congress alone) are faithfully executed, to his solemn duty to do so. What they did not foresee is that, with the rise of hyper-partisanship, institutional and partisan prerogatives might often fail to be aligned. In particular, they did not foresee that when the presidency and the Congress are in partisan alignment, the Congress might willingly allow partisan prerogatives to trump institutional prerogatives and that this might lead Congress to willingly abandon its constitutional station as a check on the presidency, even a lawless presidency. Once the Congress has abandoned its constitutional station as a check on the presidency, the system of checks and balances is basically inoperative and the Constitution is all but null and void in practice.
That is the nature of our current crisis.