The End of Genuine Law and Order in the United States?

What does the end of a republic look like?  Ever since Donald Trump’s presidential candidacy became something other than a punch line, people on both the right and left have been asking whether he represents the end of the line, an extinction event for American constitutional democracy.

The truth, however, is that Trump is not the source of the problem, although he will make it much worse.  As I argued in a column over the summer, because the election of Hillary Clinton would almost surely have been followed by four years of gridlock and festering anger, the 2016 election was likely to provide at best a four-year delay before reaching the same moment of reckoning that we face today.

Although I would have preferred to stave off constitutional death for another four years, here we are.  An openly autocratic bigot threaded the Electoral College needle, with sliver-thin vote margins in a few swing states that were sufficient to make him the president-elect.  Now we wait to see which extreme actions he is willing to take.

Unsurprisingly, much like the last president who lost the popular vote, Trump is acting as though he won by a landslide, and even his weak-kneed doubter Paul Ryan has talked about a “mandate.”  It would be a joke if it were not so tragic.  Trump wants to continue to run roughshod over our political system, and the Republicans are there to help.

Again, however, we need to ask what it would mean on the ground for the rule of law to be eroded to the point of obliteration.  How would we know it is happening?  And most importantly, can it be stopped once Trump gets started?

The reality is grim but not hopeless.  If there is to be any hope at all, however, we need to think seriously about the many facets of our grim new reality.

The “Who’s Gonna Stop Me?!” School of Autocracy

During George W. Bush’s presidency, I began to notice that his administration frequently and blithely violated established norms.  Especially after the terrorist attacks on September 11, 2001, the Bush/Cheney team simply did as it chose, issuing official lies to justify the erosion of long-established constitutional and legal constraints.

At the time, my favorite analogy was to visualize people waiting to get into a theater or a restaurant.  There is a red velvet rope, a group of people in line, a person minding the door, and a closed door that leads inside.  Normal people walk up, assess the situation, and either join the back of the line or decide to go elsewhere.

It turns out, however, that there is precious little holding that social norm together beyond what people expect each other to do.  When a person tries to break into a line, other people chastise him.  If he walks to the front of the line and simply steps over the velvet rope, the door-minder is supposed to stop him.  If he pushes that person aside, what then?

Or what if, rather than doing things as everyone else does them, the interloper notices that there is a side door.  Everyone else assumes that the door is locked or that, even if it is not, you just don’t do that.

A person who simply does not care about following social rules quickly determines that he can kick in any door and do as he pleases while everyone else stares and says, “Wait, that’s not supposed to be happening!”  The bully dares us: “Who’s gonna stop me?!”

It is hardly surprising that many other observers noticed what was happening during those years, and that they came up with different analogies.  Mark Tushnet, at that time a law professor at Georgetown, published an article in 2004 called “Constitutional Hardball,” where hardball is roughly the equivalent in my analogy of kicking down doors and pushing past people in ways that are unexpected and surprisingly difficult to stop.

Even more surprisingly, Tushnet pointed out that the constitutional claims by the hardball-playing bullies are sometimes not obviously wrong.  That is because the Constitution is a collection of words that are much more open to broad interpretation than we like to imagine.

Just last week, Paul Rosenberg in Salon described Tushnet’s concept of constitutional hardball as “political claims and practices that are within the letter of the Constitution but in noticeable tension with the way it’s normally understood.”

Rosenberg was referring specifically to the Republicans’ refusal to play their part in the “advice and consent” process of filling a Supreme Court vacancy.  Republicans at some point noticed that the Constitution does not specify what counts as advice or consent, and there certainly is nothing requiring them to hold a hearing or take a vote on President Obama’s nominee, Judge Merrick Garland.

To get a sense of why this is such a surprisingly difficult constitutional question, consider what could have happened if Hillary Clinton had won the electoral vote and had faced a Republican blockade of her judicial nominations.  Senate Republicans would be saying, “Who’s gonna stop us?”  Could Clinton do anything?

She could, because the same vagueness in the Constitution that Republicans use to justify their intransigence can be used in the other direction.  I am not the first person to notice that “advice and consent” could be said to mean that the Senate must act within a reasonable period of time or be deemed to have consented.

That is, there is at least as good an argument that Senate inaction implies agreement as it does disagreement.  The only difference is what we have as a nation accepted as the appropriate norm.  If someone comes along and says that he will now play by different rules, where is it written that he is wrong?  And even if it is, who will stop him?

In fact, the situation is even more open-ended than it seems.  After all, why should judicial confirmations require a 60-vote majority?  Why have we not always required a unanimous vote in the Senate, to indicate the consent of “the Senate.”  When even one senator votes no, is that the withholding of the body’s consent?

But if we have long contented ourselves with the idea that fewer than 100 votes are enough, why do we require more than one positive vote?   Why is even a majority required?  I am not saying that there are not good normative arguments for majority or super-majority requirements, but in a document that contains all kinds of counter-majoritarian features, where is the constitutional commandment that tells us how the Senate’s role is supposed to be played?  Why could a president not announce that she will deem the Senate to have consented with 40 votes?

The simple answer is that we rely on—we have to rely on—a shared sense of how things will work.  When Republicans start to say that they do not share that sense, and they realize that all they need to do is to refuse to accept old norms, then all bets are off.

A (Possibly) Extreme Example of Trump/Republican Hardball

Again, the Garland example of constitutional hardball is by now old news, and it was not Donald Trump’s doing.  What could yet happen?  How far will Trump be willing to push the limits?  Beyond kicking down doors, will he be willing to simply destroy the whole building to prevent other people from even getting in line to get inside?

Consider what initially sounds like an absurd possibility: What if Trump simply shut down the Supreme Court?  In fact, what if he said that the federal courts are a constitutional abomination?  Surely, he would not have a leg to stand on, right?

Actually, Article III of the Constitution, which lays out the rules for the judicial branch of government, is surprisingly short and non-specific.  The relevant structural requirements are contained in the first sentence: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

There are all kinds of possible ways that the Trump Administration could play games with those words (if, indeed, he decides that he even needs to make a text-based argument).  They are outlandish yet not as obviously out of bounds as we might think.

For example, when I was a law student, my Federal Courts professor laid out (not to endorse the argument, but as a thought experiment) a counterintuitive interpretation of Article III: Maybe the constitution requires the creation of a trial court, not a constitutional court.

My classmates and I objected that the words “Supreme Court,” along with the optional creation of “inferior courts,” clearly ruled that out.  Our professor then pointed out that to this day New York State refers to its trial courts as the state’s supreme court, and its highest court that determines constitutional questions is the Court of Appeals.

That use of the word supreme was known to the framers of the Constitution, so why are we confident that Article III was meant to create a co-equal branch of government, as opposed to merely guaranteeing that the federal government would have a court available to adjudicate simple legal disputes involving the government?

The point is not that this is a good argument, but that the reason it seems so obviously weak is a matter of norms and history.  There are velvet ropes and people lined up, expecting that what they know about how our courts work will continue to be the way they work.

After all, if the Supreme Court itself can suddenly disrupt decades of settled law and decide that the Second Amendment confers an individual right as opposed to a group right, or that Congress does not have the power to impose restrictions on states’ actions through the Voting Rights Act, why would we be sure that a Trump Administration would respect any norm-based practice?

Rather than stacking the courts or refusing to follow Supreme Court decisions, Trump’s people could simply say that the Court is constitutionally illegitimate.  Who is going to stop them?

The Trump Acceleration of the Republican Assault on the Rule of Law

Even though Republican leaders in Congress have been playing constitutional hardball for years, they have made arguments that (if we take them seriously) show a surprising amount of naïveté when it comes to what the president can and cannot do.

As The New York Times reported in June of this year, Senate Majority Leader Mitch McConnell argued that Trump will “have a White House counsel.  There will be others who point out there’s certain things you can do and you can’t do.”

Will he?  And will he listen?  Why would he?  He will control all of the government’s guns.  What can Congress or the courts do if Trump says that he is going to violate the law?

Similarly, the once-admirable John McCain offered this bromide: “I still believe we have the institutions of government that would restrain someone who seeks to exceed their constitutional obligations.  We have a Congress.  We have the Supreme Court.  We’re not Romania.  Our institutions, including the press, are still strong enough to” stop Trump from violating the Constitution.

As I wrote at the time, however, there is no guarantee that Trump would listen to McConnell or McCain if they came calling.  What would they do if he simply refused to meet with them?  What if he had them arrested for, say, attempted trespass on the White House grounds?  Or treason.

Of course, this might all be dismissed as over-the-top speculation, and everyone should hope that it is.  Given that Trump refused even to guarantee before the election that he would accept the result if he lost, we certainly have reason to wonder how far beyond the limits of normal behavior he would be willing to go.

And it is not as if there are no Republicans who would gladly go along with Trump, rather than standing with McConnell and McCain if they were to try to say that Trump had gone too far.  Senator Tom Cotton, for example, holds especially troubling views.

Cotton, a Harvard Law School graduate and a rising star in the Republican Party, has shown that he is perfectly willing to ignore constitutional and legal norms and limitations.  Most famously, “two months after entering the Senate, he wrote to Iran’s leaders, warning them that any nuclear agreement they struck with President Barack Obama might be overturned by Congress.”

This is especially pertinent to the point that I am making here, because Cotton’s letter “made Senate veterans wince, though 46 other senators eventually signed it.”  In other words, Cotton’s seasoned colleagues did not like the way he was kicking down a door that was thought to be inviolable, but once he had done it and the sky did not fall, they joined in the fun.

Crucially, almost everything that I am talking about here is on the margins of current understandings, but it would not take much nerve at all for Trump or his acolytes to think that they could take those steps and many more.

The reality is that this is the very definition of abnormal.  Once we are confronted with a narcissistic president who thinks that he is his own best advisor, and who is absolutely insistent on getting his own way, legal and constitutional limitations begin to look very tenuous indeed.

If Republicans do not stand with Democrats to prevent presidential overreach—and there is absolutely no evidence that they will—we could soon learn just how fragile the rule of law truly is.