Serious as a Heart Attack... Our Constitutional Conundrum

The conservative (albeit anti-Trump) legal scholar George Conway has explained the conundrum of our being dependent on the Supreme Court to order the executive to comply with the law in the present circumstance. I recommend looking up his remarks. There was a signifciant decision in the Supreme Court this week, although only procedura. It was 5-4, and it is a prelude to the final showdown on this great issue. Let's taken it as read that Trump's administration, under his direction, is, in fact, defying the law in a significant number of particulars. There is prior case law and statutory law saying that the president must spend money appropriated by Congress and may not simply rule by decree, eliminating agencies created by Congress, firing people without legally provided for process, etc. This subject is itself worthy of a lengthy treatment, but I think most people who are paying attention at all to current events have some idea that there is a crisis brewing around these develpments. So, please take it as a given for this discussion that there is no doubt at all that Trump is violating the law, the question is, what can the court do about it? (If you just don't see it this way, I'm sorry, but this is objectively true at this point, and you may want to stop reading because you and I are at irreconcilable loggerheads). I believe the answer is deeply, deeply troubling, even terrifying, and not only because at least four members of the court are cowards, although I do think that is the case. But because the Republican majority Congress has abdicated its job, refusing to even react when the executive overreaches and tramples on its Constitutioanl powers. And, the truth is, ultimately there is no real way, short of asking Trump to respect the law, for them to force him to comply with the law, even the Constitution itself. And he has repeatedlly hinted —more than hinted— that he doesn't believe he should have to. This, in itself, is a grave constitutional crisis.

Five of the justices, including Roberts and Coney Barrett, see that it is indeed their role to tell the executive what the law is, and direct that the administration "must" obey the law. I put "must" in quotes, because it's not like the IRS telling you you "must" pay your taxes. If you don't, they'll dispatch law enforcement to arrest you, eventually. The Supreme Court cannot do that. It relies on the coequal branches having respect for the law. The remaining justices aren't entirely irrational or obstructionist, theoretically, although I would argue that given thre reality of the situation we are in, which they know very well, they are expressing willingness for the republic to simply be ended, and replaced by a dictatorship, because the Article I branch is unwilling to do its job, so the hell with it. This, in my view, is simple cowardice, or possibly rank willingness to go along with dictatorship out of ideological preference for authoritarianism (in the case of Alito and Thomas, I think that is exactly what it is). Anyway, as a practical matter, the attitude of these four is simply surrender. I believe that even the most "strict constructionist" judges before this era would agree that the court should at the very least recognize that the executive is wildly exceeding its powers under the plain language of both statutes and the Constitution iteslf, and state in their judgment that they must do so. Becaus it is the law.The precedent whereby this seems the only reasonable view is probably most reliant on Youngstown Sheet & Tube Co. v. Sawyer, commonly known as the Steel Seizure Case, decided by the U.S. Supreme Court in 1952. In this landmark decision, the Court ruled that President Harry S. Truman did not have the authority to seize and operate the steel mills to avert a strike during the Korean War. Truman, who was an honest and straightforward officer of the United States who did his duty under his oath of office, complied. As would most of the presidents in our entire history. (Nixon complied with the order to release the tapes, for example). But, likely, not Trump, based on his own statements, his defiant attitude towards any checks on his power, and his obvious actual ignorance of how checks and balances are supposed to work and why they are so critically important to the very survival of the American republic.

So, what happens when the president refuses to comply? The Constitutional remedy, of course, is impeachment and removal from office. Because the court can't summon the army, or the US Marhsals (who are answerable to the president via the Attorney General), to compel compliance. They can only rely on the Constitutional officer to accept their authority to tell him what the law is, and comply. There is a very real expectation that, failing this, the Congress will not do its duty, which would be to immediately impeach and convict the president of failure to comply with the laws, which in turn would automatically result in his removal from office. Then, of course, there would be the expectation that the new president (Vance) would comply. Good luck with that.

So we are in a very, very dark place, constitutionally. There is a real possibility that four, or even five, of the justices will espouse an overblown sovereign immunity argument and shy away from even being willing to tell the president he must comply with the law. But even if the majority does uphold a larger conception of the role of the court in ensuring the continuity of the republic, if the Congress simply refuses to deal appropriately with a lawless president, then government under the Constitution will have failed, full stop, and there will be nothing anyone in and under color of their office is willing to do about it. We will have arrived at no-kidding full blown dictatorship, and short of massive civil disobedience, our own version of the Maidan Orange Revolution or the Arab Spring uprisings, our republic will have passed into history and we will be living in a dictatorship.

If you think, oh, surely not, that won't actually happen, will it?, I admire your sunny optimism. Because from where I'm sitting on this lovely March afternoon, this seems the most likely outcome to me. And I shake my head with a heavy heart and tremble for my country.