Repairing Our Damaged Constitutional Guardrails
by Ronald J. Krotoszynski, Jr.
As the Trump Administration goes noisily into its death throes, it would be comforting to think that things quickly will return to normal after Joe Biden takes the oath of office at noon on January 20, 2021. Such a happy assumption might prove to be unduly optimistic.
It’s awfully hard to put Humpty Dumpty back together again after he tumbles from his wall-side perch. In this instance, “Humpty Dumpty” represents the numerous constitutional norms, conventions, and traditions that Trump and his enablers, both within the Executive Branch and the Congress, have systematically shredded over the past four years.
Norms, conventions, and traditions are the tendons that keep our skeletal constitution functioning – and if you lose the tendons, the bones no longer function properly. Accordingly, as we approach the post-Trump era, one of the structural problems that legal scholars, government officials, and lawyers all need to think about carefully is whether it's prudent for the United States to continue to rely on soft rules (norms, conventions, traditions) as our primary brakes against the gross abuse of political power. Since taking office in 2017, Donald Trump and Mitch McConnell have taught us a very important lesson: Non-binding norms and conventions do not actually constrain power very well if those holding office harbor few, if any, compunctions about ignoring them. The problem is seriously compounded when the government officials ignoring these soft law rules pay no electoral price whatsoever because the base of voters of one of the two major parties simply does not care whether the President plays by the rules that prior Presidents and Congresses have observed.
In 2018, Professor Neil Siegel, of the Duke law faculty, wrote a thoughtful and persuasive essay on the importance of constitutional norms and conventions. He recognized that Trump and his enablers were systematically ignoring long-standing norms and practices that facilitated the functioning of the federal government and posited that our national governing system simply won’t work if each branch uses its institutional powers in a maximal way. Siegel’s solution? He argues that “[i]t is essential that the President be called out for his disregard of political norms and constitutional conventions each and every time he disrespects them.”
Of course, Trump has been called out – and consistently – by members of the political opposition, by the media, by courts, and even by members of his own political party. As it turns out, calling out a would-be tyrant does not seem to have much of an inhibiting effect on the would-be tyrant’s behavior. Who knew?
To provide some examples of norm shattering behavior, consider the GSA administrator’s long delay in recognizing that Joe Biden had won the 2020 presidential election and therefore become “President-elect.” The GSA is about as milquetoast and anodyne an administrative entity as one could hope to find; it labors in happy obscurity most of the time. Yet, Emily Murphy, GSA's Trump-appointed incumbent administrator, refused to acknowledge the obvious because Dear (Ex)Leader would have become very angry with her if she took the simple step of acknowledging reality. Rather than follow the example of her predecessors and perform her legal duties under federal law, Murphy instead chose to indulge and facilitate Trump’s electoral delusions for weeks after the election had been called for Biden.
We should now be worried (very worried) about other "neutral" administrative entities, charged with performing merely ministerial tasks, doing their jobs in the future. For example, the Archivist of the United States collects ratifications of constitutional amendments and, by statute, gets to decide when a constitutional amendment has been ratified (subject to an override by Congress -- if we use the process followed for the 27th Amendment as a guiding precedent). I'm virtually certain that Congress vested this responsibility with an obscure administrative gnome, who lives deep in the bowels of the administrative state in near-total obscurity, to insulate the ratification call from direct forms of political control (or even manipulation).
Given the GSA’s capitulation to a thin-skinned President, I now believe that reliance on structural devices of this sort is plainly inadequate to ensure that expertise rather than politics controls the decision making process within even the most obscure of federal administrative agencies.
The most awful convention shattering behavior, in my view, is at the Department of Justice. The tradition of an Attorney General exercising independent legal judgment has been totally shredded by Donald Trump and his “Roy Cohn” AG, Bill Barr. A reasonable person might well question whether this genie can be put back inside the bottle. Presidents going forward know, if it's really important to them, that they can exercise direct political control over DOJ and get away with it. Nixon’s Saturday night massacre would not raise eyebrows today – that is how badly our institutional norms and conventions surrounding DOJ have eroded. To quote Tom Hanks, playing astronaut Jim Lovell in Apollo 13, “Houston, we have a problem.”
It may be that we have been naïve to think that wasn't the case previously – the President has always had the raw power to use the DOJ as a political enforcer. However, open and notorious bad behavior is one thing, back door/sneaky bad behavior is quite another. And, in a context like this, the degree or scope of the breach matters because public behavior is what sets the norm or convention going forward.
Finally, let's not forget Trump browbeating, persistently and over time, Jerome Powell, who chairs the Fed's Board of Governors, on lowering interest rates to boost the economy. Whether the angry tweets played a causative role or not, more often than not, Powell gave Trump what he wanted after being hit with a presidential tweet storm. Markets did not react badly because stock prices benefited from cheap money. But, still, the assumption that the Fed is, or at least should be, immune from direct forms of political control? Gone, baby, gone.
These examples raise a critically important question: How do you effectively insulate an administrative entity from direct forms of presidential political control? Given what we have seen over the past four years, my advice would be to take the administrative entity outside of the Article II executive branch. We may need, quite literally, a fourth branch of government that has its own constitutional mandate for being in existence and an existence free and clear of the President (but still subject to judicial review with regard to the legality and constitutionality of its actions). Tasks that need to be undertaken on an apolitical basis probably should be vested with entities that lie outside the direct day-to-day control of the President and his administration.
For example, conducting the decennial census plainly belongs in the category of things that should be beyond direct presidential control (or, less charitably, interference). So too the nation’s monetary policy – unless we wish to follow the example of Zimbabwe. President Robert Mugabe’s direct political control over the nation’s central bank led to the circulation of $100 trillion dollar bank notes under a regime of runaway hyper-inflation – estimated to have hit 79.6 billion percent month-on-month and 89.7 sextillion percent year-on-year. (No, I am not making up these numbers.)
In a short essay, I obviously cannot provide a comprehensive list of other administrative tasks that should lie outside direct forms of presidential oversight and control. I will posit that the list should be a relatively short one; in general, unaccountable government power is not a good thing and some form of executive oversight, most of the time, improves rather than degrades the performance of administrative entities. In fact, social psychology teaches that if a decision maker knows that her decision will be subject to review by some outside person or entity, she will exercise greater care in making the decision. Recent events suggest that counting votes and declaring winners could be a candidate for a politically insulated federal administrative agency – for example, a wholly independent Federal Electoral Commission seems like a good idea. Staffing such a commission could be tricky though -- structures work to create independent administrative entities only if the staffing does not utterly undermine the structure. Cf. The constitutional courts in Hungary, Poland, and Russia.
One of the biggest lessons of the Trump Administration is that it's dangerous to leave open questions in constitutional and administrative design because norms and conventions, at the end of the day, are not binding if a President chooses to ignore them. Congressional oversight is in tatters -- subpoenas are useless when the President simply disregards them and the courts don't rush to enforce them with meaningful sanctions. That's another area where we probably need some sort of express constitutional text that defines and perhaps delimits the power of Congress to demand information and testimony from the Executive Branch. To be sure, a statute won't do much good if the courts won't enforce it – but the same holds true of a constitutional mandate. For the moment, I am willing to assume that a federal court would enforce in good faith a constitutional mandate that empowers congressional oversight activities -- but, again, see, e.g., the constitutional courts of Hungary, Poland, and Russia. The key point, however, is that ignoring a clear textual rule, embedded in the Constitution, and adopted via the arduous Article V amendment process, would certainly impose higher institutional costs on a reviewing court than failing to enforce a mere norm, convention, or tradition.
I have long wondered how a well educated and reasonably prosperous nation, like Germany, ended up as a fascist dictatorship. The same question has puzzled me as Russia, Hungary, and now Poland have abandoned free and fair elections and the rule of law in favor of autocracy. Our recent long constitutional nightmare under President Trump demonstrates how propaganda, big lies amplified by partisan media outlets, and highly siloed voters can undermine both democratic institutions and democracy itself. It happened in Germany, it’s happened more recently in Russia, and it’s happening right now in Hungary and Poland. An autocratic leader will first systematically flout institutional norms and conventions -- and once he has consolidated power, will go on to destroy the formal, ostensibly binding, legal constraints that were meant to channel, check, and control the exercise of state power.
For the record, I am not positing that the contemporary United States is essentially Germany at the end of the Weimar Republic period. Even though our governing institutions have come under a sustained attack, the guardrails, at least so far, have held and the rule of law (again, so far) has prevailed. But we need to be clear eyed and sober about the obvious institutional weakness of our federal governing institutions and their clear vulnerability to subversion by a populist demagogue.
President Trump has demonstrated with convincing clarity the inherent weakness of our institutional circuit breakers -- the country remains at risk of a collapse of our governing norms if we do not do something to install better, more reliable circuit breakers that will prevent a melt-down. Rome’s governing institutions did not fall in a day – the Roman Republic’s institutional circuit breakers were systematically overridden and a republican system, that featured at least limited democracy, degraded into a de facto monarchy over time. We would be foolish to assume that what happened to Rome’s system of government simply cannot happen here too.
Joe Biden's victory was perilously narrow – the Electoral College turned on just under 125,000 votes, out of over 155 million votes cast, distributed across four states (namely Arizona, Georgia, Pennsylvania, and Wisconsin). And, even after leaving office, Donald Trump will be running a shadow government -- with his 74 million supporters telling anyone who cares to listen that Joe Biden isn’t really the lawfully elected President of the United States. The 2020 presidential election has secured a stay of execution -- not a full commutation of sentence – for our governing national institutions.
In light of this reality, it will be critical for the Biden Administration to devote serious time, energy, and, most important, political capital, to restoring the circuit breakers that make effective self-government under the Constitution and rule of law possible. Some solutions may require constitutional amendments – we should at least consider whether it might be possible to advance amendments that will safeguard our republic and its governing institutions. In the meantime, however, we should also consider what steps could be taken via statutory reforms to shore up the existing guardrails.
Finally, one cannot overstate the importance of civic education – something that policy makers at the federal, state, and local level have largely ignored for decades. If we want citizens to participate rationally in the democratic process, our public schools must prepare tomorrow’s voters for engaged civic life and well-informed participation in the political marketplace of ideas. Today, however, most young adults can graduate from high school without ever taking even in a single course in civics or government. Our national civic malaise may well be related to our nation’s systematic and systemic failure to prepare young people to play their role in using the electoral process to hold government accountable. By ignoring the importance of inculcating the habits of mind and basic knowledge of government institutions and their functions required for “We the People” to effectively oversee our government, we have created the civic conditions that gave rise to Trump and Trumpism and enabled him to hold over 70 million fellow-citizens in his thrall. Shoring up our institutional structures will be of little (if any) use if a great many U.S. voters continue to cast misinformed ballots based on verifiably false facts and clever social media manipulation.
-----
Ronald J. Krotoszynski, Jr. is the John S. Stone Chair, Director of Faculty Research, and Professor of Law at the University of Alabama School of Law