❄ Emergency Design

❄ Donald Trump Poses an Exigent Threat to the US Polity. What to do?


This note begins a response to the question ‘What to do?’ At the moment these paragraphs are place-holders. Still, they remind us that there are multiple measures from which an informed citizenry can draw, suited to successive stages as the emergency develops.

There are distinct, dissimilar reasons why any one of us might judge our circumstances to pose an Emergency. I appreciate that for some it is Trump’s failure to sever his private business from his position as President, posing unanswerable problems of motive and trust. There is powerful argument that this Polity must come together, the people unite, in defense of the Polity itself, and some honorably cling to hope that Trump will commit to that unity. To be clear, and to avoid misunderstanding, I consider it a side issue whether Trump’s occupying the Presidency is ‘legitimate’ or ‘illegitimate.’ What most threatens the Polity, in my judgment, is that Trump is unfit, unpredictable, subject to bizarre performances, hence the dangerous occupant of a most powerful and consequential office.

Most of the paths below are familiar. However, let me explain CONGRESSIONAL DENIAL. Trump’s authority depends in no small part on the presumption that Republican majorities in the House and Senate will supply him with a compliant Congress. Perhaps they will. It is also possible that strife will reign over relations between Trump and the Republicans.

Occasionally commentators note that control of the flow of business in the House and the Senate depends upon the House and Senate leadership being able to call on their membership with a confirmed expectation that their majority will rule. CONGRESSIONAL DENIAL would depend on upsetting that expectation in the Senate.

I have chosen to name those legislators who elect to go along with Trump, smooth his road, sit silent, as ‘collaborationists.’ Some may find that uncomfortable, excessive, recalling Europe’s complicated responses to the 1930s. But that is exactly why I choose the term. Traditional China had an expression: ‘the rectification of names.’ If you find the label ‘collaborator’ uncomfortable I suggest you speak up for the Polity and practices that call out for your voice, and by your actions, in the bright light of day, reject collaboration.

  1  RESIGNATION

A US president may simply resign, as Richard Nixon—facing impeachment— resigned in 1974. The Constitution, Article II, Section 1, anticipates that a president may resign. Amendment XXV (1967)
Section 1. reads: “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.”

  2  IMPEACHMENT

The Constitution, Article I Section 2, accords the House of Representatives “the sole Power of Impeachment.” If a proposed impeachment reaches the floor of the House it is subject to consideration charge by charge and as a whole, which are put to vote, a simple majority required for passage. In a House of 435 members 218 are required to impeach. Today’s House—that is, that elected on 8 November 2016—consists of 241 Republicans and 194 Democrats. Hence: a Republican move to rid themselves of President Trump by impeachment would go to the Senate even if 17 Republicans voted “no” and all Democrats were uncooperative. A Democratic initiative to impeach Trump would require that all Democrats be joined by 24 Republicans, or more if some Democrats did not join their party colleagues in voting to impeach.

Why bother with all the numbers? A House majority and a 2/3 majority in the Senate would be sufficient to impeach and convict. If the votes were there Trump would be gone. Done. But consider:

•  if Trump were impeached but not convicted, the issues he poses would be unresolved;

•  if Trump were convicted Pence would become President, an outcome that fails to protect Democratic Party legislative and policy aims;

•  among House Republicans some may insist on enacting laws (e.g. re Affordable Care, immigration, abortion) and making a Scalia-replacement on the Court before casting a vote for impeachment;

•  strange as it sounds, it could be that Trump’s only way to avoid being evicted from the White House is to enter into a broad deal with a ‘bipartisan unity caucus’ protecting prime Democratic objectives, as the Democrats hold the Senate votes necessary to get a 2/3 vote for conviction;

In a nutshell, Republicans risk being punished in November 2018 for their opportunism and political incompetence in enabling Trump to become President. They ‘own’ Trump’ the Bizarre. The Democrats, still aflame at the brazen theft of a Supreme Court seat in 2016, have little with which to bargain, apart from their near-majority in the Senate, hope for 2018, and Trump himself.

The Constitution, Article I Section 3 establishes the procedure for trial:

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.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

  3  DISABILITY

Disability presents a more complicated case. The President may assert disability, or it may be asserted by others. The President may resist a claim that he or she is disabled. In the text quoted below I have added highlighting to call attention to key provisions. The controlling language is in Amendment XXV (1967), Section 4:

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

In short, the Vice-President may initiate a claim that the President is disabled, but only if joined by a majority of one or another group of officers, as set out in the text. At that point the Vice-President “shall immediately assume the powers and duties of the office as Acting President.” But the President may insist there is no disability. The remainder of Amendment XXV Section 4 spells out how the difference shall be resolved. The Congress—by a “two-thirds vote of both Houses”—shall have the last word.

There are many who believe that Donald Trump was already disabled when he took the Oath of Office. Though characterizations of his circumstances were various, many onlookers believed they discerned a severely handicapped narcissist who appeared unable to distinguish the trivial from the important, affairs of state from affairs of ego, fact from fiction, and who lacked the common regard for others which is a prerequisite for governance.

Would Vice-President Pence initiate a claim of disability? That is hard to imagine, given Pence’s role in enabling the Trump campaign at a crucial juncture. It is also hard to see that the required concurrent group of officers could be found. That is: at this writing [23 January 2017] Trump is filling his Cabinet with sycophants and the “other body” referenced in Amendment XXV must be defined “as Congress may by law provide,” that is, a law passed by House and Senate and either signed into law by Donald Trump or created as law by an override of his veto. Far-fetched.

Thus it appears that even if Pence wished to oust Trump and seize the Presidency
the disability clauses of Amendment XXV would pose severe obstacles.

  4  SUFFICIENT SENATORS BALK

It may be difficult, or nearly impossible, to remove Trump from office, but there is another aim by which Congress could respond to the emergency which Trump embodies and presents. I term this the ‘CONGRESSIONAL DENIAL’ option. Trump enjoys a Republican House and Senate. The Republican Party, with the most minimal exceptions, has wrapped itself around Trump’s back insisting there is common cause. But that might not prove to continue to be the case. Trump may reject central Republican policies, or commit outrages which repel the public, or find himself subject to indictment in the Courts. Impeachment requires a majority in the House. But Trump’s capacity to act, and perhaps his willingness to continue to subject himself to the rigors of the Presidency, could be frozen by working together among a very small number of Senators.

Picture a bipartisan group of a few Senators profoundly—and patriotically—alarmed at the political disaster unfolding around a recalcitrant Trump. A few Republican Senators, joined by a few Democratic Senators, would propose to caucus with the Democrats on organizational questions. They together with all Senate non-Collaborationists would come into a majority in the Senate. They create the Emergency Committee. Having a majority, they organize the Senate. Mitch McConnell could peaceably retire, the structure of Senate committees would be in the hands of the Emergency Committee, and the calendar of the Senate would also be freed from the Collaborationists. Again, only a few Republican Senators, more if some Democratic Senators rejected the initiative, would be required.

Is it crazy to imagine Senators reconstructing the Senate in order to tie Trump’s hands? A similar move has happened in living memory. Recall 24 May 2001. Senator James Jeffords of Vermont, a Republican, found himself uncomfortable with policies of the Republican caucus. He declared himself an Independent, joined the Democratic caucus, and the Democratic Minority Leader of yesterday became the Majority Leader of the Senate today. Overnight. The Senate had been so evenly divided that the move by one Senator was sufficient to replace Republican control by Democratic control.

  5  DENIAL OF FUNDS

The question is ‘how could an ad hoc Emergency Committee constrain a President wielding all the authority of the Executive Branch?’ It could agree to block judicial appointments, including appointments to the Supreme Court, that the Emergency Committee did not approve … bulwarked by an understanding that the Emergency Committee would be sworn to balanced recruitment to the Courts. It could agree to withhold appropriations from Executive initiatives that were not bilaterally approved. In doing so it would be leveraging the Constitutional rule that no monies may be spent by the United States of America without lawful authority and that all Appropriations measures much originate in the House.

It could withhold consent from any legislation sought by the White House to enhance, or refine, Executive authority.

  6  ELECTORAL DEFEAT [2018]

In November 2018, when a third of Senate seats and all House seats are subject to election, the citizenry could deny election to any political figures declining to distance themselves from Trump. They could even deny seats to candidates failing to follow the lead of the Emergency Committee.

  7  ELECTORAL DEFEAT [2020]

Similarly, in 2020.

  8  POPULAR VOTE DECIDES [2020]

Whatever one’s view of the paths outlined above, there is one path which should be undertaken and which merits cleanly bipartisan support. This is the initiative to ensure that the Presidential candidate obtaining the most votes be guaranteed, by that fact, election by the Electoral College. As designed this procedure could be brought into effect without any wrenching changes in the Electoral College as it now exists, nor would it require any Constitutional amendment. The proposal is well-designed and already has the formal complete endorsement of eleven States. What is this magical solution to the Electoral College Problem and how can one learn more about it?

The National Popular Vote Interstate Compact proposes that States agree that the Electoral Votes of that state shall be cast for whichever candidate for President receives the largest popular vote.The possibility of Compacts among States was provided in the original Constitution, and several such compacts exist today. Article I Section 10 provides:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

which means in part that two or more States may “enter into [an] Agreement or Compact” between or among themselves for any purpose not explicitly excluded. They must, however, obtain Congressional assent. As this is a post-Trump proposal, without any implications for Trump’s current status, there should in principle be no objection to this proposal from the Congress or the White House.

[Bruce’s DESIGN: 2017.01.29. Post BB09. Short Link p=682. Front Door Index: http://design.learnworld.com/. Permalink:
http://www.learnworld.com/DESIGN/uncategorized/❄-emergency-design
]