When the U.S. Supreme Court, in a clearly partisan move, anointed George W. Bush as president, I was mad, but I recall saying, “Well, at least we don’t live in a country where this will lead to rioting in the streets.” A couple of years later, I found myself saying, “We should have rioted in the streets.”
I still think the damage Junior Bush and his apocalyptic army did to this country is incalculable, but it pales by comparison to the current situation. The con man currently occupying the White House is completely unqualified for the job and presents a threat not just to the kind of government we need and should have, but to the country as it has always existed. The U.S. has never been the exceptional place we were taught about in school — our flaws are legion — but it’s been considerably better than this.
This is a constitutional crisis of massive proportions, because there is a real possibility that this overgrown toddler will put in place authoritarian policies that undermine all our shared principles and the rule of law. Or worse. He is like the main character in Jerome Bixby’s “It’s a Good Life,” except that he’s in his 70s.
But all too many of our institutions are pretending that he’s really the president, and giving him the benefit of that authority. There are lots of reasons for that, the most reasonable of which is that we try to interpret our constitution and laws in a way that transcends the people in public office.
I’m a retired lawyer. Most of my life, I have held to the idea that the rule of law and the Constitution will keep our country on an even keel. I believe strongly in the freedom of speech and press (and from the establishment of religion) guaranteed in the First Amendment, and have in the past agreed with the ACLU when they defended hateful people in free speech cases. But I’m beginning to rethink my position on all this.
Our system does not have a fast response button for the times when things really go off the rails, and this is one of those times. Impeachment and removal from office is a slow process (as well one impeded by partisan nonsense in this situation). We have no means to set aside a flawed election, or even to take quick steps to investigate one that appears to have had some serious shortcomings (at a minimum).
In short, we have no official legal means to stop something that is dangerous to our well-being as a country.
We do, however, have some legal approaches that can be applied by our courts if they want to ensure that the country is not destroyed by our toddler in chief.
Dahlia Lithwick wrote an wonderful piece on this subject and also pointed to an excellent law review article by law professors Sandy Levinson of my alma mater, the University of Texas, and Mark Graber of the University of Maryland. (The link is to the abstract, but you can download it on that page as a free pdf if you’re inclined to do some light legal reading.)
In arguing that the current not-normal state of affairs requires courts and others to treat Trump differently from other presidents, Levinson and Graber maintain that the “that the Article II [of the U.S. Constitution] powers of a president manifestly unfit for office are different from the Article II powers of a president who has the character and capabilities appropriate for exercising those powers.” To answer the scholars who have said all presidents must be given the same authority, the authors argue that those who have written on the subject before never “considered the possibility that a bigoted, uninformed, serial liar would assume the powers of the oval office.”
They point to Brown v. Board of Education and New York Times v. Sullivan, two significant decisions by the U.S. Supreme Court under Chief Justice Earl Warren that took into account the racist abuse of law against African Americans in making rulings on school segregation and the right of public figures to sue for libel. Those of you interested in the legal theory can read the article to understand the details, but the overall point is that even the Supreme Court is not constrained to consider reality, especially in a time of national crisis.
Lithwick also takes on the brouhaha over Michelle Wolf’s program at the White House Correspondents Dinner, and makes it clear that the press needs to stop pretending that this is a normal administration and get out there and fight.
Things aren’t normal. Pretending that they are will only make things worse. As Levinson and Graber say, “The flying saucers have landed.”