Tuesday, December 17, 2019

Why Did the U.S. Constitutional Breakdown Take So Long?

by Neil H. Buchanan

Now that the Senate Republicans have made it clear that they have no intention of running an honest trial of the impeachment of Donald Trump that the House will soon approve, non-Republicans and NeverTrumpers alike are trying to figure out what to do next.  The problem, of course, is that the Constitution is not self-enforcing; and even if it were, it is being exposed as hopelessly inadequate to the current task.

Take the bare language of the two procedural impeachment clauses.  The last clause of Article I, Section 2 reads in full: "The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment." The last clause of Article I, Section 3 reads in full: "The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present."

That is it.  Note that the Senate's role is described in maddeningly vague terms: "... the sole power to try all impeachments."  Is that permissive or not, that is, does it mean that the Senate MUST try all impeachments or that it has the power to try all impeachments IF IT FEELS LIKE IT?  After all, I have the power to sing my high school's fight song backward every morning, but I have never chosen to exercise the power.  Even if I were given that power solely, would I have to do so?

Apparently, Moscow Mitch is planning to abuse the vagueness of that clause differently, not by refusing to try the impeachment but by refusing to try the impeachment with any seriousness or impartiality -- that is, by simply misinterpreting the keyword "try" to mean whatever he wants it to mean.  And even though Senate rules require members to swear oaths to be impartial jurors, those rules could be changed by a simple majority vote (but for obvious optical reasons will not be) or simply ignored.  Moreover, there is virtually no possibility that the courts would deem this justiciable.

I will offer a few thoughts about the "What now?" question presently.  More importantly, I will talk about why it took so many years for the U.S. to reach the point where gaping weaknesses in the Constitution -- indeed, weaknesses in the very nature of constitutional democracy -- are finally being exploited.  What took so long?

In Today's Washington Post, Professor Laurence Tribe describes McConnell's planned sham proceeding as a "Potemkin Trial" -- nicely connecting the Trump impeachment to that particular historical reference to Russia and Ukraine.  The Senate, he says, must hold a "meaningful" trial.

Because the Senate will not do so, the House could be as cagey as the Senate when it comes to manipulating the system's ambiguities.  Tribe reminds us that a prosecutor can decide not to bring a case before what he knows to be a packed jury.  Similarly, the House can decide not to pursue impeachment at all -- or it can play with the timing and refuse to refer the impeachment to the Senate until there are procedures in place to guarantee a fair trial.

Does that mean that the House should not vote for impeachment today?  Not necessarily.  But why not, if the Senate has the sole power to try all impeachments?  Would the House not be giving the Senate the impeachment to try, if it votes today as expected to impeach Trump?  Well, it would be impeaching him, but the House could say that it is not referring the impeachment for trial unless it agrees to participate, and "we will not play along with a sham."  That, too, is non-justiciable.

How might that play out?  The House can say, "We're not referring the impeachment to you yet for trial."  The Senate can say, "So what?  We're holding a trial anyway."  The House then says, "We're not coming."  The Senate retorts, "We'll still hold a trial."  House: "That's not a trial."  If the Senate goes ahead and holds a McConnell-style trial (refusing, as he announced today, even to call witnesses who were told not to testify in the House), the House can simply say, "We'll get back to you later with our impeachment."  (Even if the House were to hold off on a vote today, query whether the Senate could preemptively "try" an impeachment that it decides has happened as a de facto matter.  Indeed, why not issue a Senate Advisory Opinion that all possible impeachments of Trump will be treated the same way?)

In short, although I agree with Professor Michael Gerhardt (he of the brilliant testimony in the House Judiciary Committee's hearings on impeachment) that calling impeachment a "political process" is a loaded term that can play into Trump's burn-it-all-down strategy, it certainly is true that the standoff between the Democrats in the House and the Republicans in the Senate can only be resolved either by a show of conscience on the part of the Republicans (highly unlikely) or by both sides angling for maximum political advantage.

Or, to put it more bluntly, there truly is no "law" here other than whatever enough relevant people agree to do and not do.  This leads to lawlessness when one side simply says that they refuse to follow all previous precedents, rules, and norms and simply says, "You can't stop us."

This, however, has always been true.  It is not as if the Constitution was recently amended in a way that weakened the impeachment clauses.  They have been sitting there for over two centuries, waiting to be exploited.  Similarly, House subpoenae stopped being enforceable when someone was willing to say out loud that they were never enforceable as a practical matter.  It is the internal political version of Stalin's sarcastic comment: "The Pope! How many divisions has he got?"

Again, why has this not happened before now?  Please bear with me as I draw a comparison with my original field of study: economics.

The mainstream approach to economics was taken over by what became known as the Chicago School to all but erase the notion of transitions from one equilibrium to another.  That is, suppose that the Supply and Demand curves for a good cross at the equilibrium price of $5.  Then, preferences change so that the new equilibrium price is $8.  How long will it take for the price to move from $5 to $8?

One might think that a number of different factors would lead to different possible transitions (both the path of prices and the time taken to get to the new equilibrium), but the field of economics became dominated starting in the 1980's and onward by people who could not conceive of reasons that the answer was not "immediately."  Why?  Because for every nano-second that the price was not at its new equilibrium, there was "money on the table" that rational actors would immediately exploit.  The only way for the story to end was at a price of $8, but the story ended as soon as it began, because it simply had to.

This inexorable reasoning is parodied by people who note that economists are prone to what amounts to this style of argument: "Well, if X were a good idea, it would already be happening."  The market perfectly exploits all information, so nothing can improve on its outcomes.  This, then, is a turbo-charged excuse for laissez-faire economics, based not on a comparison of the pros and cons of private versus public actions but on the simple belief that self-interest will always lead immediately to whatever result the underlying incentives dictate.

Perhaps it is because I was so over-exposed to that style of reasoning that -- even as I reject it as nonsensical -- I find myself replicating it so frequently.  Once it is clear where the incentives lie and what the structural barriers are (or are not), then we should see the inevitable outcome right away.  Shouldn't we?

I thus find myself saying that Republicans made it clear years ago that none of the rules were actually rules.  If the House's majority decides to adopt a "majority of the majority" rule, thus making the notion of majority rule a joke, then the only thing stopping it is its own members refusing to go along.  And why would they?  And when Dick Cheney referred to elections as "accountability moments" after which anything goes, he seemed to be outrageously wrong; but Trump and McConnell have proved him right

And of course, if the elections themselves are not treated with respect, then that too becomes a sham.  Even ignoring how blatantly the Republicans are now rigging elections through voter suppression (helped along, of course, by the Supreme Court in Shelby Cty. v. Holder and subsequent rulings, which themselves were possible only because Republicans in robes were willing to sweep away evidence and precedent), I always wondered why it was so inexpensive to buy American politicians.  After all, multibillion-dollar companies and fortunes can be created and protected by rigging the political system, yet wealthy people spent years playing penny-ante power politics with lobbying and political donations that added up to mere thousands of dollars in many cases.  Why be so cheap?

The answer, of course, is the same in politics as it is in economics.  It is not a simple matter to "see where this is inevitably headed" in advance, and even when it is, there are intermediate steps that we must take along the road to perdition (or anywhere else).  And people like Tribe (and me) continue to hold out at least at tiny bit of hope that the future is not already written.

Even as far along as the Republicans are in locking down the system so that the rule of law will soon be a hollow promise, the only thing for the rest of us to do is to act as if that is not inevitable.  The holes in the system were always there to be exploited, but smart and ambitious people did not exploit them in the ruthless way that Republicans have been doing for the last generation or so.  There might still be enough fail-safes built into the system that people of good faith can save the system, even at this late date.

I am usually willing to say despondently that it is all over but the shouting, but I obviously do not truly believe that necessarily to be our future.  Forcing Republicans to reveal themselves even more clearly as their fraudulent selves seems like the only way to uncover where the limits -- if any -- of our system can still be found.

3 comments:

  1. I support the last sentence and find those who want the House not to send the impeachment counts to the Senate until a fair process is promised (how is never? is never okay with you?) misguided.

    As to the breakdown, and we still aren't at Sinclair Lewis "It Can't Happen Here" territory yet, it was broke in a range of ways over our history. Perhaps, we just were living in a moment where it was (at least for some people) not bad & Trump being elected etc. made it seem to collapse oh so fast.

    But, the warning signs were there & the margin of safety repeatedly too small.

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  2. I concur with "Joe"'s first sentence. On the one hand I am heartened that you and Professor Tribe have not given up; on the other that it is too late and that the "best and brightest"- like your voices- can not seem to find a path to stop this breakdown. I am trying hard not to be frightened (FDR put it "...the only thing we have to fear is fear itself"), and, perhaps I can take some comfort from events half a world away- look how very hard the good people of Hong Kong are fighting for democracy, and the rule of law, in their opposition to corruption, authoritarianism, and cruelty.

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