The Present Crisis
Yonatan Zunger

There is one thing certain about the political crisis in the United States today: when it ends, the Constitution will be profoundly different.

First off, you may be having a political crisis, but many of us are not. Controversy is not crisis.

Secondly, unless the red states manage to convene a Constitutional Convention, the Constitution will remain the same. It takes consensus to pass an Amendment, and there is very little consensus in the US these days.

But the system that we have grown up with, the particular powers of each branch of government, has already come to an end.

What an incredibly paranoid statement. There is zero reason to believe it.

That moment demonstrated just how fragile our system really is.
Both the two previous presidents took liberties with their powers, under the reasoning that nobody ultimately is going to say no to the President.

The Muslim ban is a terrible example. It was poorly written, and the problems you describe was not a clash of the Powers as much as they were simple chaos, where the Marshals did not have clear guidance on what to do.

The flaw in the Constitution you describe has been demonstrated well before Trump. Because we approve of the outcome, we conveniently forget that Lincoln basically threw the Constitution in the hopper during the Civil War. The President had no enumerated power to declare an end to slavery. It could only be done by an act of Congress.

Want a more recent example? Look at the GM bailout under Obama. Bankruptcy laws got tossed in that go-round. Bondholders that had written agreements that they were supposed to get paid first got screwed.

You’re correct that there’s an unspoken assumption in the Constitution tht the President will not only adhere to the letter of the Law, but the spirit of the Law. Under the last few presidents, you’re correct in saying that confidence that the previous two and this president seem less interested in adhering to that spirit. But Trump is not, at this point, pushing the envelope any farther than did Obama or Bush.

I don’t think Trump had anything in mind as complex as testing the limits of Constitutional authority; he wanted to see what he could get away with, and how people would react, and he used that information later to see if he could get away with more.

I doubt that. To him, he was fulfilling a campaign promise. The President does indeed have statutory authority over matters of immigration. There are limits to that statutory authority, however, and it was the limits he ran afoul of, rather than trying to grab statutory authority he did not previously have; which WOULD have actually created a Constitution crisis.,

Today, the constitutional crisis has only deepened. The problem is simple: the President continues to openly and brazenly flout the law (with his open self-dealing through “golf vacations” and through his family’s businesses, and with his senior appointees’ near-weekly habits of perjury, being the least controversial examples), and his essential argument is that no-one can stop him, so it must be legal.

The above makes no sense. How is a “golf vacation” brazenly flouting the law? And if his senior appointees are having foot in mouth disease, how does that mean that Trump trying to extend his power as mentioned previously?

If you have a way to connect those dots, then show your work, please. It’s not intuitively obvious.

In the years following, Gingrich and others developed a strategy in which dealing across party lines was tantamount to treason.

This is a very odd statement, considering the fact that Gingrich and Clinton enjoyed a rather successful bipartisan relationship, moving a good deal of legislation which contributed to the strong economy of the late 1990’s.

In short, Congress has spent the past twenty years weakening itself, reducing itself from the primary source of power in the government to a backup squad for the Executive.

This is absolutely correct, but you need to peel the onion one step further and explain HOW. What Congress has done since the Bush I era is to slowly but surely cede their own power to the Executive. They do this by passing bills which make the Cabinet Secretary, rather than Congressional action, the decision maker on major policy changes. So, bills which Congress passes are riddled with statements like “X will be determined at the discretion of the Secretary of the ….” instead of “X will be determined by Act of Congress.”

The most vivid example of this occurred in the beginning of the Clinton term, when Congress passed legislation giving away the power to set the underwriting limits of the GSE’s (the old “your mortgage payment cannot be bigger than 25% of your income or 37% of your total debt) and putting it in the hands of the HUD secretary. Under pressure from the heads of the GSE’s, who wanted to participate in the Wall Street Mortgage Casino, Andrew Cuomo changed the underwriting parameters, permitting Fannie Mae and Freddie Mac to underwrite nonprime and subprime mortgages, which turned out to be unwise, as Fannie and Freddie required bailouts which were far larger than any of the Wall Street firms.

What this means is that today, it’s hard to imagine anything which would cause Paul Ryan to call for an impeachment vote.

Disagree. Trump’s GOP support is wide and thin; Pence is seen as more stable and even more re-electable. If Trump’s support drops to the high 20's on aggregate, then Ryan would pull the trigger, I believe.

It is possible that Mueller’s investigation (if it isn’t stopped by Trump in the next few days) will come out with evidence so damning that it makes even Paul Ryan blush, but I would not suggest you bet any money on that.

I quite agree. I expect Mueller is sitting there as we speak saying, “there’s a lot of crap here, but none of it is a crime, and none of it has anything to do with the President.”

While that’s not a shocking bug in retrospect, we should respect why the Founders didn’t predict it: what they were doing was literally the first attempt ever at building a constitutional democracy at scale. Nobody had any experience with this, and the fact that what they built lasted for nearly 228 years is quite impressive.

Absolutely correct.

But we should remember that we are not the country founded in 1776. We are actually already in (at least) our second Republic

Third, I’d say. The amendments you allude to ended up changing the dynamic of the Republic. The Framers envisioned 13 nation-states operating independently, held together by agreeing to a common defense and a shared set of values enumerated in the Bill of Rights. They did NOT envision a powerful central government which takes in 4T in taxes each year and reroutes it back to the states to run programs as the federal government demands.

In an American Third Republic, we should consider that many ideas which seem “obvious” to us today about how our government is run — not merely the Electoral College, but even the idea of a President elected with powers separate from Congress — may change. This is not a failure of democracy, but rather its best function: the ability to fix itself when it breaks.

I’d suggest that the next republic just look more like the first republic. Texas and California are never going to agree on anything. So return to Federalism, let the states run their own programs funding by their own taxes. If CA wants single payer health care and Texas wants HSA’s, let it happen.

It may also be useful to take the idea of checks and balances and turn the knob even higher than we have in the past; for instance, no democracy in the modern world gives as much power to their executive as the President of the United States has today. And certainly nobody grants legislatures the power to draw their own electoral districts!

All reasonable ideas for a Constitution Convention.

What comes next is not a Constitutional Convention, but rather a process during which the democracy we grew up with finally collapses; a process in which the power which has steadily accumulated in the hands of the Executive increasingly turns to serving its own interests, and abandons even the pretense of public service.

There is a name for what you describe. It’s called “Revolution”. Two problems with that:

The first is that if “Trump” is all it takes to stoke a revolution, then it seems to me that the revolutionaries will never be satisfied with anyone who does not adhere narrowly to what they think is best and right. Down that path lies the very dictatorship they wish to avoid.

The second is that a revolution would destroy the economy, as major economic actors seek more stable environments. US economic power would be gone for a generation. Standards of living would drop precipitously. It is a case of the treatment being worse than the disease.

What happens between where we are now and the end of this situation remains unclear. The only thing clear is that there are no legal mechanisms which will end it; what happens next depends entirely on informal processes, on things like the public pressures which causes Congress and Trump to do one thing or another.

Well, voting comes to mind.

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