Trump, Brexit, and Undoing the Voters' Will

by Neil H. Buchanan

One of the tried-and-true tactics of dictators and would-be dictators is to claim legitimacy based on some moment when they can claim to have been put in place by "the people."  That the people no longer support them, or never supported every single thing that the authoritarians propose, never seems to matter.

Even people who are less further along the authoritarianism wannabe spectrum spin these delusions, as we saw in former President George W. Bush's infamous reference to his hair-thin 2004 reelection (along with his regent Dick Cheney) as an "accountability moment."  The basic idea is simple: I won, so I can do whatever I want, no matter how I won and no matter what has changed since I won or what people were thinking about (and not thinking about) when they voted for me.

As has so often been the case for the past three-plus years, the worst kinds of authoritarian tactics and tropes that we see in the U.S. are also showing up in the U.K.  Although British PM-for-the-moment Boris Johnson is no Donald Trump in terms of being at the center of a cult of personality, the Trump-Brexit analogies continue to pile up.

Now, as faux populists on both sides of the Atlantic see themselves in genuine danger, appeals to "the will of the people" are predictably arising from the aggrieved American and British leaders.  Even on its own terms, however, their argument is nonsense.

We can start where Donald Trump always starts (and ends): Donald Trump.  Although his defenders have been notably short on actual arguments to defend him in the increasingly damning impeachment investigation, they have been saying for years that any attempt to remove Trump from office is an attempt to "undo" the will of the people.

We now dutifully note that Trump is especially poorly positioned to invoke the will of "the people," because he is president only because of anti-democratic features of our Constitution -- which makes him even more hypocritical for complaining about "phony" constitutional matters like the Emoluments Clause.  The people did not elect Trump; barely enough people located in just enough states did.  So the whole will-of-the-people thing with Trump is off to a very weak start.  Forty-six percent of voters chose him.

But sure, let us say that because Trump is constitutionally legitimate that he is also the people's choice. Again, that is not true, but if the people have not risen up and demanded a new Constitution, then perhaps we can say that there is a (tenuous) core of democratic legitimacy there.  Similarly, Johnson was put in office by about 100,000 Conservative Party members (older and whiter than the British public at large), but British and Northern Irish citizens are not rejecting his legitimacy as Prime Minister.

What seems to have escaped the attention of the Trump/Brexit people, however, is that elections happen more than once.  A recent piece by anti-Brexit commentator Ian Dunt noted that Johnson tried to sell his new Brexit deal by "unleash[ing] the full rhetoric of the 'will of the people' against his opponents. To oppose the deal, raise concerns about it or even ask for it to be properly scrutinized was to undermine the electorate. To support him was to support Britain."

Again, "the people" who elected the MP's who indirectly installed Johnson in 10 Downing Street did not do so with the current deal in mind.  But here, Johnson is not (as Bush and Trump have done) saying that his election represents the will of the people.  It is the June 2016 Brexit vote itself (51.9% "leave' to 48.1% "remain") that represents the never-to-be-questioned will of the U.K.'s voters.

As Dunt pointed out: "This is the populist register in which the Brexit debate is conducted. And it is still punishingly effective against many members of Parliament, even three and a half years after the referendum."  Three and a half years later, "leave" is still the will of the people, never to be questioned.  Hmmm.

Earlier this year, Professor Dorf argued on this blog that "A Second Brexit Referendum Would Not Be Undemocratic," and he was right.  What is especially bizarre about the no-do-overs argument in the British context is that this is a country with a political system that provides for what are colorfully called snap elections.  That is, the people vote, a new Parliament convenes, and the politicians are then allowed under certain circumstances to say, "Well, this isn't working out.  Let's try again."  What about those voters who so recently expressed their will?

Yet even though the original -- not legally binding -- Brexit vote was waged entirely dishonestly (with repeated, false claims of huge sums of money being "sent to the EU"), and even though the longest a Parliament can sit is five years before a new election is called, Johnson and the other Brexiteers insist that only the June 2016 vote can possibly represent the will of the people.

Not to be outdone, Trump and his followers are absolutely insistent that the only reason the Democrats are trying to impeach Trump is to undo an election.  Yet we had another election in November 2018, and Trump was routed.  He said over and over that the election was all about him, and the voters turned over 40 seats in the House of Representatives to the Democrats -- a change that is especially impressive given the gerrymandering that Republicans have engaged in over the years.

It is this Democratic majority that now is on the verge of impeaching Trump, which means that elections have consequences that Trump does not like.  And his argument is even more silly, given that Democrats are not trying to rerun the 2016 election but are instead invoking the Constitution's limits on what a President can and cannot do if he wants to stay in office.

Constitutional Law scholar Stephen I. Vladeck wrote a nice piece in yesterday's New York Times under the title "Impeachment Does Not 'Overturn' an Election."  There, he offers what amounts to an originalist argument that the founders must not have thought that impeachment was anti-democratic, because the Constitution's original provisions created the possibility (quickly realized in the election of 1796) that the President and Vice President could be from different parties.

Why is that relevant?  Vladeck points out that one way to think about what it means to "overturn" an election is for an impeachment to throw one party out of the White House and to install the other.  Yet that is exactly what could happen under the original Constitution.  He also notes that, even after the Twelfth Amendment was adopted to change the way Vice Presidents are selected, it was not until the Twenty-Fifth Amendment was ratified in 1967 (more than 150 years later) that a change of party holding the presidency was all but eliminated as an outcome of impeachment and removal.

Perhaps because Vladeck was trying to make a historical point -- a good one, to be sure -- I think he understates the more obvious point.  Of course impeachment will overturn the results of an election, because it must.  Only people who win elections under the rules set out by the Constitution are in a position to be impeached.  We could not impeach Michael Dukakis, to take one of dozens of examples, because he lost.

Again, Vladeck comes close to saying as much, and I can see why he might have chosen not to emphasize what truly is an obvious point.  Because I am, however, willing to emphasize the obvious when necessary -- and it clearly is becoming more and more necessary -- I will say it bluntly: A constitution that includes an impeachment provision endorses by its very design the overturning of election results.

Granted, this Republican talking point is not as outright scary as Trump's lawyer's unhinged letter -- what now seems part of the distant past, but actually sent on October 8, only three weeks ago -- claiming that Trump can choose not to "participate" in the impeachment process.  There, after all, Trump is asserting that he himself can determine whether he can legitimately be impeached.  It truly is an assertion of unchecked presidential power.

Against that extreme standard, of course, anything else will look mild.  But the point here is that the pseudo-populism to which Trump and Johnson constantly return is ultimately a shell game to decide which electoral outcomes are sacrosanct.

Under this system of illogic, nothing that makes Trump the not-president can be right, because (as he never tires of reiterating) he won under the rules in 2016.  Similarly, nothing that makes Brexit not happen can be right, either, because a bare majority of voters fell for a completely dishonest campaign earlier in 2016.  No buyers' remorse.  No backsies.

People are allowed to change their minds, and they are certainly allowed to notice that the duly-designated leader is violating his oath of office.  Even if "we" Americans once said (sort of) that Donald Trump should be President, he can and did disqualify himself and should be removed.  Even if "we" Brits and Northern Irish once said (after being lied to repeatedly) that a quick and painless exit from the EU sounds dandy, subsequent events have made clear that doing so would be a bad idea.

And no amount of pointing to cherry-picked election results can change that.