OK, hive mind, let's game this out. (This is a follow up to my post on the WaPo article saying that the great legal mind, Donald Drumpf, has floated his intention to end birthright citizenship by decree, which I find alarming even in an era of daily alarms).
So here's the scenario. Let's posit that Democrats manage, despite lack of message and feckless political organization, to take back the House next week. But Trump just doubles down. Realizing he can't get an (also equally and obviously unconstitutional) bill through a lame duck or later divided Congress to purportedly overturn the 14th Amendment grant of citizenship to anyone born in the US, he just issues an imperial edict purporting to do so. And of course he precipitates a Constitutional crisis in doing so. It's pretty clearly an opening salvo in an attempt at a coup, where he will gradually become a dictator and ignore the Congress.
If you doubt the great legal mind Trump could actually do this, here are his own words:
«"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump told Axios.
When told that view is disputed, Trump asserted: "You can definitely do it with an act of Congress. But now they're saying I can do it just with an executive order."
"It's in the process. It'll happen . . . with an executive order," he said, without offering a time frame.»
So, maybe this is just Trump blather. He says all kinds of crazy shit, admittedly. But let's just say he actually does this. What might he be thinking?
The Right has undeniably been working assiduously for decades to get a majority of right wing ideologues on the Court. Can there be any doubt that with Kavanaugh they have finally succeeded in this? The question is just how far will the majority go? Will they endorse Trump's plan to become a dictator without firing a shot? Because that's what he just said, in his own words, in effect. Pretty clearly a post-midterm Congress will not go along.
But are there five votes on the Court? To just let him govern by decree? I wish I could confidently say no, but I'm honestly not sure. Adept legal minds without principles or morality (Alito, Thomas, Kavanaugh, Gorsuch pretty likely... Roberts, maybe not)... can rationalize almost anything.
So this happens. Some elements in the law enforcement establishment are ready to enforce the decree, and on an emergency basis no doubt, it comes before the court. And the court, by 5-4 goes along.
I think at that point, we are all but overwith as a Constitutional republic. Trump could issue edicts canceling elections, making any kind of laws he cares to, overriding the sovereign power of states to make laws he disagrees with... really at that point there is no limit. Congress could really not do anything, because he'd just nullify their acts and dissolve the Congress, maybe forever. Think not? Study history, my friends. All of this has happened before, and not just in third world countries, and not just in the distant past, either.
But change things a little. Very good likelihood that this is too much even for our present court. Even Gorsuch and especially Roberts might not go along with this. So, let's say Trump doesn't do this yet (this is his best opportunity, arguably, but nonetheless...)
Let's say he waits until the Democratic House is at least seated. And then all of the above happens. And let's say after he has issued his edict, and it becomes clear (as it would) that he intends to become a dictator by increasingly inclusive rule by decree. At that point, might it not be at least conceivable that a majority of the House and 2/3 of the Senate would be either ready to impeach him, and/or ready to impeach any Supreme Court justices who vote with him? Because, I would argue, finding such a decree constitutional despite the black and white language of the 14th amendment* would be grounds for impeachment. There are limits to the ability of the Court to simply ignore the plain meaning of the Constitution they are sworn to uphold. Or we would like to think so.
*"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Very clearly upheld in United States v. Wong Kim Ark (1898) 169 U.S. 649.
So there it is. Can our republic be saved from Donald Trump? Already, my friends, I really do fear that the best answer we can give is "maybe."
So here's the scenario. Let's posit that Democrats manage, despite lack of message and feckless political organization, to take back the House next week. But Trump just doubles down. Realizing he can't get an (also equally and obviously unconstitutional) bill through a lame duck or later divided Congress to purportedly overturn the 14th Amendment grant of citizenship to anyone born in the US, he just issues an imperial edict purporting to do so. And of course he precipitates a Constitutional crisis in doing so. It's pretty clearly an opening salvo in an attempt at a coup, where he will gradually become a dictator and ignore the Congress.
If you doubt the great legal mind Trump could actually do this, here are his own words:
«"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump told Axios.
When told that view is disputed, Trump asserted: "You can definitely do it with an act of Congress. But now they're saying I can do it just with an executive order."
"It's in the process. It'll happen . . . with an executive order," he said, without offering a time frame.»
So, maybe this is just Trump blather. He says all kinds of crazy shit, admittedly. But let's just say he actually does this. What might he be thinking?
The Right has undeniably been working assiduously for decades to get a majority of right wing ideologues on the Court. Can there be any doubt that with Kavanaugh they have finally succeeded in this? The question is just how far will the majority go? Will they endorse Trump's plan to become a dictator without firing a shot? Because that's what he just said, in his own words, in effect. Pretty clearly a post-midterm Congress will not go along.
But are there five votes on the Court? To just let him govern by decree? I wish I could confidently say no, but I'm honestly not sure. Adept legal minds without principles or morality (Alito, Thomas, Kavanaugh, Gorsuch pretty likely... Roberts, maybe not)... can rationalize almost anything.
So this happens. Some elements in the law enforcement establishment are ready to enforce the decree, and on an emergency basis no doubt, it comes before the court. And the court, by 5-4 goes along.
I think at that point, we are all but overwith as a Constitutional republic. Trump could issue edicts canceling elections, making any kind of laws he cares to, overriding the sovereign power of states to make laws he disagrees with... really at that point there is no limit. Congress could really not do anything, because he'd just nullify their acts and dissolve the Congress, maybe forever. Think not? Study history, my friends. All of this has happened before, and not just in third world countries, and not just in the distant past, either.
But change things a little. Very good likelihood that this is too much even for our present court. Even Gorsuch and especially Roberts might not go along with this. So, let's say Trump doesn't do this yet (this is his best opportunity, arguably, but nonetheless...)
Let's say he waits until the Democratic House is at least seated. And then all of the above happens. And let's say after he has issued his edict, and it becomes clear (as it would) that he intends to become a dictator by increasingly inclusive rule by decree. At that point, might it not be at least conceivable that a majority of the House and 2/3 of the Senate would be either ready to impeach him, and/or ready to impeach any Supreme Court justices who vote with him? Because, I would argue, finding such a decree constitutional despite the black and white language of the 14th amendment* would be grounds for impeachment. There are limits to the ability of the Court to simply ignore the plain meaning of the Constitution they are sworn to uphold. Or we would like to think so.
*"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Very clearly upheld in United States v. Wong Kim Ark (1898) 169 U.S. 649.
So there it is. Can our republic be saved from Donald Trump? Already, my friends, I really do fear that the best answer we can give is "maybe."
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