The Guardrails Fall

Top Stories of the Year: #1

I’ve been counting down the top stories of 2024. Here they are so far:

Now for top story #1, which might not seem like much of a mystery.

The top story is partly the election of Donald Trump to another term as president, after a disastrous first term, an attempt to overturn an election, and after making increasingly authoritarian promises for his next term agenda. But that’s not the real center of this story. The real story is the collapse of the constitutional, institutional, and cultural “guardrails” that would keep a would-be authoritarian in check.

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Anti-Constitutionalism

Early this year, I made the case—along with many other people—that Donald Trump ought to be barred from running for president again by the plain language of Section 3 of the 14th Amendment, a post-Civil War provision that banned from office anyone who had engaged in “insurrection” against the United States. I warned that “the conservatives on the Supreme Court cannot reject an Article 3 argument without making a mockery of the entire conservative legal philosophy. I think they have already done so in the Dobbs decision, so I am not ruling this out.” This is exactly what happened.

There are some arguments that Donald Trump didn’t technically engage in insurrection. I don’t think this is terribly convincing, and the Colorado Supreme Court ruling that went for review at the Supreme Court laid out the evidence against him very fully. But the Supreme Court did not rule in Trump’s favor on the factual merits. They ruled for him by essentially throwing out the 14th Amendment.

As I wrote about the eventual ruling, “I have always been less concerned about how the court would rule in this case than why they would rule.” The reasoning they gave was to invent out of thin air a requirement that Section 3 could only go into effect on the basis of separate legislation passed by Congress.

Giving Congress and only Congress the power to enforce Section 3 is both redundant and contradictory. If the framers of the 14th Amendment intended to allow Congress to enforce this provision by a simple majority vote, why did they also provide another mechanism for granting amnesty from enforcement by a two-thirds vote?...

Once again, the Supreme Court’s so-called “originalists” are just making stuff up as they go along. Or as one observer put it, “Kind of fun that after all this talk of democracy the justices basically amended the Constitution by judicial fiat.”

This decision isn’t just unconstitutional. It’s anti-constitutional. The whole point of having a constitution is that its provisions supersede ordinary acts of Congress. The whole point is to place some rules above the preferences of a temporary majority. In doing the opposite, the Supreme Court simply wiped out part of the Constitution.

This was the pattern for their other big ruling of the year.

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The Seal Team Six Theory of Executive Power

The most ominous ruling this year was about presidential immunity from prosecution for crimes committed in office. I was certain that the courts would not rule in favor of such immunity, and I quoted a lower court ruling in the case.

At bottom, former President Trump's stance would collapse our system of separated powers by placing the president beyond the reach of all three branches. Presidential immunity against federal indictment would mean that, as to the president, the Congress could not legislate, the executive could not prosecute, and the judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.

Earlier on, the judges offer this wry observation: “It would be a striking paradox if the president, who alone is vested with the constitutional duty to take care that the laws be faithfully executed, were the sole officer capable of defying those laws with impunity.”

But that’s not the most ominous part of the earlier court action in this case.

By far the most revealing exchange was this one:

Judge Florence Pan asked Trump’s attorney, D. John Sauer, if “a president who ordered SEAL Team 6 to assassinate a political rival” could be criminally prosecuted. Sauer tried to hem and haw his way through an answer but ultimately stated that such a president couldn’t be prosecuted unless he was first impeached, convicted, and removed by Congress.

“But if he weren’t, there would be no criminal prosecution, no criminal liability for that?” Pan pressed. Sauer had no choice but to agree, because acknowledging any exceptions would have blown a hole in his argument.

I hope that makes you sit up and take notice. Listen to the exchange for yourself. It’s a moment that ought to go down in the history books—either as the moment we plunged over the edge into dictatorship, or the moment we recoiled and turned back.

This seemed so definitive that I did not think the Supreme Court would be brazen enough to overturn the lower court rulings. But they did, and they invented an even more curious doctrine in which the president’s immunity is greatest precisely when exercising the “core” functions in which he has the most power and the least dependence on other branches of government.

The areas in which the president has the most power are precisely the areas where he most needs to be held accountable for the criminal abuse of those powers.

For example, among the “core” powers granted to the president directly by the Constitution is the power to issue a pardon. But what if the president began to sell pardons? What if he accepted a bribe to pardon a criminal? By the Supreme Court majority’s reasoning, he is absolutely immune.

As for the immediate implication of this in the new year:

Now consider the specific facts at issue in this prosecution: Trump ordered officials at the Department of Justice to issue a letter declaring the 2020 election to be fraudulent, something both he and they knew to be false, in order to embolden state officials to back Trump’s slates of fake electors. This is Trump’s official powers used for an unofficial and illegitimate purpose—not on behalf of the American people, but in the service of criminal scheme. Yet this is the issue on which the Court’s majority most unambiguously insists he has absolute immunity….

Donald Trump has repeatedly boasted that if he returns to office, he will personally order a series of revenge prosecutions against his political enemies, including the state prosecutors in his own cases. The Supreme Court has just given him the green light to do so, assuring him that his authority to abuse his power can never be questioned.

This ruling knocks down yet another guardrail against the abuse of government power. As I put it, “It forces us to place more emphasis on a candidate’s personal character, his history, his ambitions, and the forcefulness of his personality—which we now have to regard as dangerous. In a world without guardrails, we have to assume that the only limits on a president’s actions are those he chooses to impose on himself.”

Note again how anti-constitutional this ruling is. The whole point of having a constitution is to set up checks and balances on the personal power of a leader, making his personal character less important than the institutions that restrict him. If a constitution doesn’t do that, what does it do?

“Originalism” is now dead as a doctrine of constitutional interpretation, killed off by its own advocates. I pointed to what conservatives are actually likely to put in its place, citing an Alabama Supreme Court ruling that advocates reading religious “creeds” and “catechisms” into the law of the land.

[Justice] Parker’s decision is part of what I’ve been calling the “Originalism Bait-and-Switch,” in which the “original meaning” of the Constitution is to be determined based solely on whatever practices are “deeply rooted in this nation’s history and tradition.” In this version, originalism becomes mere traditionalism. Justice Parker takes it one step further, asserting that America’s tradition is Christian, so therefore legal interpretation should be rooted in traditional Christianity.

In retrospect, though, it makes a certain kind of sense that the most potent threat to the US Constitution has come from the people who shouted most loudly about how much they wanted to preserve it—because that’s what you would say if you wanted us to drop our guard.

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We Are the Guardrails

Here’s the most bracing conclusion I offered from the Supreme Court’s rulings.

It will be up to us, the people, as voters and as activists—and if things get really bad, as protesters in the streets—to stop an insurrectionist takeover of the federal government. It would be nice if people appointed to positions where they are specifically charged with doing this would that the risks and handle it. But in the end, this is everybody’s job, and we’re going to have to be the ones to do it.

No one is coming to save us. Not the Congress, not the parties, not the media—and not the courts. We will have to save ourselves.

I held out some hope that the voters would stop Trump because I noticed that whenever one of the legal cases against him went in front a jury, the jury decided against him. Instead, the voters—by a slim margin—made a literally hysterical decision. I described early on what the Republicans were campaigning on.

The official Republican response [to President Biden’s State of the Union address], delivered by Alabama Senator Katie Britt is widely regarded as a disaster because of a shaky-voiced, teary-eyed delivery that can only be described as histrionic. I think her delivery was perfectly on point, because it matched the unhinged hysteria of her message, which describes America as a kind of hellscape where “the American Dream has turned into a nightmare.

Britt mostly focused on the idea that immigrants coming across the border are rapists and sex traffickers….

More widely, Republicans have been trying to stoke fears of a crime wave that isn’t happening. Crime ticked up briefly during the pandemic before falling again, and violent crime is at its lowest level since 1961. Republicans particularly want you to think there is a “migrant crime wave” caused by immigrants. This, also, is purely in their imagination….

Donald Trump and his supporters are hoping you will be so overwhelmed by hysterical panic you will turn to a strongman to protect you.

I didn’t think this would work, but in retrospect, the turning point was Trump’s first and only debate with Kamala Harris. By any rational measure, he lost the debate by a wide margin, and the moment that ought to have discredited him was when he repeated a weird online hysteria about legal Haitian immigrants in Ohio supposedly eating household pets. But within a few weeks of that debate, I noticed that Trump’s poll numbers had gone up, not down.

We all assumed—even his own campaign assumed it—that Kamala Harris’s side-comment about Donald Trump’s rallies in the last presidential debate derailed him from his agenda and goaded him into making a foolish claim about Haitians eating pets.

But look what has happened in the post-debate polls: Harris’s poll numbers have gone up by about one percentage point. She is now hovering just below 50% in the RealClearPolitics average. But Trump also went up, by about half a point, nearing his all-time high….

So perhaps this wasn’t a gaffe or a lapse in message discipline. Maybe it was the message. Maybe he knows his voters, and this was what they really wanted to hear—and he successfully got the entire country talking about it for a week. I remarked at the time that Trump is hoping you are absolutely terrified of black immigrants. Maybe he knows better than us that there are a lot of people who do in fact feel this way, and he is hoping just enough of them will support him to pull off an election win.

The terrifying fact is that he may be right.

Well, we all know how that turned out.

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The Trump Show

The story for the next year is that the voters have given Trump license to act without guardrails. They have done so by a very narrow margin—but Trump is going to see how far he can push it.

even before he takes office, he has proposed a series of high-level executive appointments who are not just unqualified but “anti-qualified—the antithesis of what the offices call for.” “Every appointee is selected as a deliberate negation, even a mockery, of the function of government he or she will be in charge of.”

And then, because he will apparently die if he is not the center of attention for five minutes, Trump has spent the days before the holidays spouting a series of crazy proposals to annex Canada, buy Greenland, and take back the Panama Canal. And yet, since the election, his approval ratings have risen.

In response to the Greenland outburst, political scientist Paul Musgrave accurately identifies Trump’s approach.

One of the best ways to appreciate the policy beats and messaging of the Trump administration is to understand it as a reality show-cum-variety show. That is, Trump is the producer and star, and every beat and sketch has to revolve around Trump—Trump should not only be the main character, but the pivotal character; whenever Trump’s not on screen, all the other characters should be asking “Where’s Trump?”, and so on. The presidency affords many instance for anyone to be at the center of most dramas, but when the narrative drifts or the camera pans away, Trump understands that a display of temper or flippancy can bring it back.

The foolishness of this election decision is that just under half of voters didn’t choose a leader, they chose a character in a reality TV show. Or as Adam Serwer puts it, they chose the “antihero” from one of our contemporary “prestige TV” shows—as if Tony Soprano is supposed to be the hero. I would write something about that, but I kind of already did a long time ago. Let’s just say that this is what we get when we trade out The Lord of the Rings for “Game of Thrones.”

But I have also speculated that if Trump as a TV character is what his supporters want, perhaps this is all that they really want. They want his crazy antics on their TV every day, they love how he makes the “elites” howl with outrage—and perhaps they won’t care so much about the actual results. I’ve already seen polls in which Trump’s supporters indicate that they don’t actually expect him to achieve much of his agenda.

Hence my suggestion of the most annoying way this all ends: Trump’s worst appointees are withdrawn from consideration (it looks like Tulsi Gabbard is the next to go), his worst policies get bogged down in legal challenges or get watered down to avoid angering various constituencies, and eventually his administration ends not with a bang but with a whimper. His supporters might be just fine with that, because he sure as heck annoyed us “elites” along the way, and that’s what The Trump Show was really about all along.

Yet there will be a cost for being entertained in this way. Check out a must-read article about what the Ukraine war has revealed about the atrophied industrial base of the US military and its inability to adapt quicky to unfolding events. Here is one of the causes.

[T]imely, coherent federal budgeting is no more. Congress routinely fails to pass appropriations bills on schedule, resorting to continuing resolutions. This keeps defense dollars coming but limits their use to existing projects. That would not be a problem if it happened only occasionally, but Congress has given the defense department a fully authorized budget on time only once in the past 15 years. This helter-skelter process constrains the Pentagon from adapting quickly to changing circumstances. New projects are put on hold, and there’s no guarantee that money will eventually come. Private contractors need predictable dollar commitments to invest in new product lines, so they simply don’t invest. As one senior Pentagon official described it to me, the phenomenon is “an own goal that we do to ourselves every year.”

All of this requires urgent reform, yet Trump has proposed for Secretary of Defense a reputed drunkard who is more focused on promoting Christian nationalism.

A fascinating article in the New York Times indicates that this is why “the American election results were received with enthusiasm in Moscow,” because “to many in the Kremlin, a Trump presidency might bring about the collapse of the American state.”

“As a former citizen of the former Soviet Union, I’ll tell you the problem with empires: They believe they are so powerful that they can afford minor mistakes,” [Putin] said in 2021. “But the problems accumulate, and a moment comes when they are no longer manageable. The United States is confidently, firmly marching down the same path as the Soviet Union.” This still seems to represent Mr. Putin’s fundamental assessment of the country. He is convinced that America is nearing its end.

I think Putin is, as usual, wildly overconfident. After all, his assessment of the failure of the Soviet empire applies equally well to his own misrule. Obviously, this is a fantasy in which former Soviet apparatchiks dream of revenge for their own system’s implosion.

But if America were to collapse economically, politically, and in terms of our international influence, Donald Trump would be the man to do it. We should take seriously one part of what Putin says, and not be so certain we can afford mistakes.

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Here’s a final reason I think Putin is being overconfident: beneath the turmoil of our politics, we are still racing forward in a frenzy of technological and economic progress. I have offered the occasional roundup of good news, and I recently recounted the birth of the progress movement at a conference in the fall.

As usual, we’re in a race between the primitiveness of our politics and philosophy versus the advances of our science and technology.

Stay tuned in the next year, when I will help you follow what happens next.