It’s a question that has surely pounded at the brain of every liberal in America for two-plus years: Can the Constitution survive Donald Trump? And even if it does survive him, what will he have done to it—how will a post-Trump Constitution be understood and used, or misused?
We asked five distinguished thinkers to weigh in on these and related questions.
Barney Frank served for 8 years in the MA House of Representatives and 32 years in the U.S. House of Representatives. Since retiring from Congress he has spent his time writing, speaking, and relaxing.
Caroline Fredrickson is the author of The Democracy Fix & Under the Bus: How Working Women Are Being Run Over. She has worked in progressive advocacy, on Capitol Hill, and in the White House.
Elizabeth Holtzman is a former four-term Democratic congresswoman from New York. She served on the House Judiciary Committee that investigated the role of President Richard M. Nixon in the Watergate scandal and voted to impeach him.
Arturo Valenzuela is Senior International Advisor at Covington & Burling LLP, is a political scientist who taught at Duke and Georgetown. He previously served in both the Clinton and Obama administrations.
Benjamin Wittes is a Senior Fellow in Governance Studies at the Brookings Institution and Editor in Chief of Lawfare.
Editor Michael Tomasky and editorial committee members E.J. Dionne Jr. and William Galston spoke with the panelists on Thursday, July 11, at the Brookings Institution in Washington.
Michael Tomasky: So: Can the Constitution survive Donald Trump?
Caroline Fredrickson: I had thought more positively about that after the election with the rise of the so-called Resistance and with the reaction to the first travel ban, which was really inspiring. But as time has gone on and as the President has held at a certain level of support that seems unshakeable, I have some worries that the Constitution would not be resilient enough for two terms of Donald Trump. One term of Donald Trump, yes. And I think of how the courts have withstood his challenges, have held for rule of law. We’ve had an incredibly vibrant press which has just exposed much wrongdoing, and this also very inspiring.
But I think as President Trump makes further nominations to the courts and is moving them further and further to the right—and these are hard-right ideologues—I’m very much worried about whether the Constitution has the resilience, when checks and balances aren’t functioning, to actually be sustainable. So count me as a pessimist right now.
Elizabeth Holtzman: The Constitution will stand. What the country will look like is another story. Maybe we’ll survive in some way, shape, or form one term of Donald Trump. But if he’s got another four years to add more judges to the ranks, I’m very worried. The Constitution depends on how it’s interpreted. When we came out of the civil rights movement, who would have thought that the last section of the Fourteenth Amendment would be so eviscerated by the courts? But they’ve done that. Congress’s powers under the Fourteenth Amendment have been shorn, dramatically. It’ll be even worse.
The language will still be there, but the ability to create a just society will be eviscerated. The problem is we have a Constitution that has good provisions in it, but the courts have begun to turn it into a force of oppression in some cases. We could see incursions regarding separation of church and state; those barriers are falling. Equal rights, civil rights—the ability to deal with those issues through the courts and through the Congress could be negated. Issues of basic democracy: one person, one vote. We have another Trump appointee to the Supreme Court and what may happen is not only may a citizenship question be added to the census, but the Court may decide that only citizens can be counted for purposes of apportionment. Well, stop and think what that does to our democracy.
Barney Frank: I think the answer is in part what happens with Congress. If the Democrats hold the House and take back the Senate I would be much less worried. There are two kinds of changes. One of the most dangerous is Mike Pompeo’s redefinition of basic human rights. And then I think what you may well see, given the Supreme Court, is almost an establishment of religion so that the First Amendment gets eviscerated because they’re going to elevate religious belief over almost any other right. And that’s a serious cutback on affirmative action, on gay people, on women, and on others because religion, as they interpret it, is very restrictive for a lot of those groups.
As far as things go structurally, I think that really depends on the Congress. I think that if Democrats were to take back the Senate and keep the House, no. If, on the other hand, Trump got both the Senate and the House back again, then I think there could be some serious erosion of how things function. The one area that I’m not so worried about is freedom of expression. I know he yells at the press but frankly the other problem is the press is much too thin-skinned. I mean, the First Amendment gives you the right to say things. It doesn’t give you the right to say things and not have anybody yell at you. I do think freedom of expression is going to be okay.
I worry about individual rights, with this religious empowerment. And if the Republicans have the House and Senate, at this point it won’t make any difference whether he does it by executive action, really. The absence of any independence in the Republican-controlled Congress almost vitiates the difference between an executive order and a statute.
Ben Wittes: So I find myself in the odd position of feeling pollyanna-ish compared to everything I’ve heard so far. And also feeling like I’m perhaps in an entirely orthogonal to the universe I just heard described. On the one hand, the answer to the question as posed is this: The Constitution survived the Confederacy, the Constitution survived the War of 1812, and the White House burning to the ground. Yes, the Constitution will survive this. The question is in what form does the Constitution survive this? And I think on that point, with all due respect, I think we’re actually focusing on the wrong question so far. So I am much less concerned than apparently the others here about conservative judges. The country has had periods in which the judiciary has been very conservative before. We vacillate between partisan control of the Senate and the White House and that creates ebbs and flows between the conservatism or liberalism of the judiciary, and that does not especially trouble me, although I’m not a big fan of the jurisprudential threats that I see going on now.
Similarly, as Congressman Frank said moments ago, there isn’t a profound difference between the judges that this President is appointing and the judges that a non-Trump Republican President would be appointing or has appointed in the recent past. So I think one has to see the judiciary or the squabbling over the judiciary as a longer-term feature of partisan polarization rather than a particular feature of Donald Trump. There is an area where Donald Trump proposes a radical departure from our traditional norms and traditions and it’s one we haven’t talked about, which is a conversion of the presidency into a cult of personality. And the use of presidential powers in a fashion that is qualitatively different from any of his predecessors across a number of different axes, particularly in the sort of elevation of the expressive dimensions of the presidency over all other elements of the presidency.
And so I would suggest that if you’re asking how the Constitution will emerge from the period of Donald Trump’s leadership, the question is whether those changes are adopted. And I’d argue that reelection is a dramatic ratification in that regard, so the question of a second term matters. But also to what extent are those changes adopted by successors? And those strike me as the deep tectonic questions of the impact of Trump on the Constitution.
Fredrickson: I think it’s hard to disconnect the aggrandizement of the presidency from the judiciary because of the role of the unitary executive theory and how that’s enabled the presidency. It’s not only Trump but it certainly has come to an extreme version of that under Donald Trump. Where the Court is going may allow a further expansion of presidential powers which I think could be quite dangerous.
Arturo Valenzuela: I bring a different perspective to the conversation because my academic work is comparative and not directly focused on the United States. I certainly would agree with the notion should Trump be reelected we will continue to see an erosion of some of the fundamental principles embodied in our Constitution that threaten our institutions and our democracy. I think it’s important, however, to bear in mind that Trump didn’t come out of the blue. Indeed, his election, and how he has been able to get away with his governing style, is a testament to the fact that there are some really serious problems with American democracy, many of which are embodied in the Constitution itself.
This discussion is not new—it goes back to the founding with the Federalist Papers and reappeared many times in the nineteenth century, particularly with the Civil War and its aftermath. It was discussed brilliantly by Woodrow Wilson, our only President who was a scholar, who believed that the deadlocking emanating from the doctrine of separation of powers required moving to a more parliamentary form of government. During the Nixon impeachment, in view of the threshold of “high crimes and misdemeanors” for impeachment, several House members, including representatives Jonathan Bingham, Edith Green and Henry Reuss, proposed amendments to the Constitution that made a significant change to the governance framework enshrined in the eighteenth century document—the Seventeenth Amendment on the popular election of senators, rather than their designation by state legislators, and the Twenty-Second Amendment limiting presidential reelection. We need to add to our discussion some of the fundamental problems in our constitutional framework that need to be reckoned with, including an electoral system that permits the election of President that does not represent a majority of the people and a Senate which is one of the least representative bodies in the world. Only two presidents gained the presidency having lost more of the popular vote than Trump did in 2016—Rutherford B. Hayes and Quincy Adams and what is the meaning of popular sovereignty when Nebraska has 600,000 inhabitants and California has 40 million and they each have two senators.
My perspective on a lot of this comes from having studied the breakdown of democratic regimes in other countries and particularly in Latin America, the one region of the world that, at the beginning of the nineteenth century, copied the U.S. Constitution. In analyzing the breakdown of democratic regimes there and elsewhere we see a recurring theme—the ambitions of presidents that want to wield personal power, increased polarization, and the vanishing of a vital center, when democrats with a small “d,” either because of opportunism or fear or cowardice abdicate their responsibility to protect the Constitution and the rule of law.
We have a system of government characterized by stalemate right now, and we’ve had it for a long time. Every President, except two, since the creation of the Republican Party in 1854, all the way up to 1954—100 years—had majorities of their own party in Congress when they were elected. In 12 cases presidents were not able to retain majorities. The two presidents who didn’t have majorities when they were elected were Cleveland and Hayes—failed presidents by every account. Since 1954, we’ve had the reverse, divided government with few exceptions, so we’ve had ongoing deadlock that has exacerbated polarization that is not being fanned by “identity politics.”
Frank: Here’s what I worry about with the Constitution, at least politically: It’s the question of economic unhappiness. This is the second time in 90 years that economic dissatisfaction with capitalism is threatening democracy. It did in the 1930s. When things got better in the 1940s, democracy resurged. And now it’s going back again as the economy becomes less and less of a shared thing. I think what you get is a tendency, not just here but elsewhere, toward a kind of unfortunate majoritarianism in which the ethnic majority in any particular country is so unhappy with what it thinks is happening to it that it disregards others.
And I think that’s what worries me about the Constitution as well. One of the great things about our constitutional history is that we went from rich white guys voting to full rights going to everybody else. And what worries me here most, constitutionally, it is that this is the first time I see a serious effort to throw back some of the rights, with the cancellation of the Voting Rights Act, with Alabama on abortion, with a religious exemption that will override any gay rights, not just marriage, but whether or not I have to hire somebody. Under Trump, for the first time, what we’re getting is not just a temporary hold in the forward movement of these rights, but a serious moving of them back. And these two trends come together because the dominant ethnic majority in any country is more and more likely to feel they can go ahead and do what serves their interest and not be hindered by any kind of constitutional norms, and the result is, as I said, various minorities are going to be not just stalled but will fall back.
Dionne: I’d love somebody to respond to Barney on that but can I sneak in a question? A friend of mine who’s a student of Latin America argued that, right from the beginning, if we want to understand the threats of Trump to our constitutional order, we’ll do far better to look to Latin America than to Europe. A lot of people are talking about the far right in Europe, even Fascism in the 1940s, but the strong man in Latin America is much more the model of Trump’s leadership. [to Valenzuela] I’m curious from your comparative work how you would place him in those respects?
Valenzuela: Latin America consists some of the oldest independent nation states in the world. When the UN was founded in 1945, almost half of the signatories from Latin America because, as with the United States, they were independent states and not part of colonial empires. When they declared their independence from Spain, where did they turn, inspired by ideals of the Enlightenment, to design a government framework of, by, and for the people? With the failure of the French Revolution, they turned to the document written in Philadelphia. That’s why Latin American countries serve as good case studies of the success or failure of American constitutional design, albeit in countries with different antecedents.
As you say, for the most part, democracy has not been successful in Latin America. In the twentieth century from 1930 to the 1980s, 42 percent of all changes in government were through military coups. The Cold War exacerbated the problem as a short-lived democratic spring following World War II turned into a period of authoritarian rule. Chile, the country that I studied the most, is one of the few exceptions in the region, preceding most European countries in the establishment of long-term constitutional continuity based on the concept of popular sovereignty, although it was not spared the authoritarian reversal of the Cold War era. What are the fundamental problems with presidential democracy? For starters, presidents often think of themselves in monarchical terms, even as they are constrained by co-equal branches of government. Prime ministers are far different, at best primus inter pares, and there’s no prime minister in Europe that’s been succeeded by a spouse or a child in that office—a far cry from the dynastic patterns of presidential government in Latin America, a phenomena not absent from the U.S. experience.
A second problem is that presidential regimes are often what we can call double minority systems. As Latin America evolved from a two-party system to multi-party system, leaders became presidents without the support of a majority of the voters, and more likely than not their parties do not command majorities in the national legislature. So presidents are elected thinking they represent all the people, but because they don’t, they have a hard time governing. Richard Neustadt, one of my professors at Columbia, taught us that presidential power is in essence the power to persuade, and that in turn is directly proportional to the popular support of the President.
In this era of democratic governance since the Cold War, there have only been three classic military coups. And yet, 19 presidents have been forced to resign because they have been unable to govern. Given this reality, much of my work in supporting constitutional reform efforts in the region focused on finding the appropriate mechanisms to ward off governmental stalemate. Variants of these ideas have been proposed in the United States as well: the merits of a single ballot to make sure that you don’t in fact have divided government. Or avoiding perpetual elections, such as those held every two years for the House. Why not have them every four years for the House, and eight years for the Senate, and have them coincide with presidential elections? But perhaps even more to the point—how can we address the problem of total stalemate or a failed government, or even a corrupt but not impeachable President through votes of non-confidence or the calling of early elections, while devising specific mechanisms to encourage the building of majority coalitions and governing through agreements and compromise.
Frank: But look at Bill Clinton and George W. Bush. The last six years of Clinton and the last six years of Bush, a lot happened. This framework of deadlock and anger really starts when Obama becomes President. So that’s why I don’t think it’s quite so structural, because people forget during Clinton and Bush’s last six years, a great deal happened. We didn’t have these stalemates. I think it is more that political anger comes out of the economy. But I don’t think that stalemate blockages describe the period from Reagan on—until Obama.
Holtzman: I’m not sure that the issue is one of gridlock. That is not necessarily the bad thing that happens to us in a democracy. In fact, the Framers intended a kind of gridlock, a kind of friction, they wanted that. So that doesn’t so much bother me. If we look at the Bush years, we had a President who took us to war on a basis of lies, overruling the Constitution’s basic concern about the war-making powers, lying to Congress and the American people.
Frank: But with the acquiescence of Congress. They were as guilty as he was.
Holtzman: I did not say that.
Frank: No, you did, you said “lying to Congress.”
Holtzman: But he also lied to the American people. So that is part of also what I wanted to say. We had a President who took us into a war by virtue of these lies that was a disaster for this country, cost a huge amount of money, undermined civil liberties in enormous ways, engaged in the dehumanization of people through the torture program that was widely accepted. So, the Bush presidency also had its horrors, some of which really reverberate today.
I’m also concerned that the President is starting to acculturate the American people into a certain point of view. He just said this morning in one of his tweets: Oh, I’m going to be there [in the White House], what is it, six years, eight years, 12 years. I mean it’s all just joking. And that’s another point that needs to be discussed: the use of outside countries, outside forces to affect the election in terms of our democracy. Yeah, we can still have our Constitution, but we’re going to have ways of undermining it, as we saw in the last election.
Fredrickson: I come from a liberal family, certainly my parents. But my grandparents were old-style Republicans, and it’s shocking to me really how now there is no responsible Republican Party. How do you actually function in a two-party system when you have one party that has become so bankrupt of ethics, so bankrupt of the sense of norms and decencies that we have taken for granted? There was a way of functioning, and I think the two members of Congress can speak to that. I worked on the Hill for a long time, and there was a lot of antagonism, but there was a give-and-take and an ability to meet people on the other side and reach compromise, and it seems right now that the Republican Party has said whatever Trump does is fine. Either they agree that it’s worth it because of whatever dismantling of federal regulations that they wanted, whatever dismantling of protections for minority populations that they’ve wanted, or whether they’re just petrified of being attacked by Trump, either way it’s really frightening.
Valenzuela: It’s the abdication of democrats with a small “d.”
Wittes: I guess I’m starting to lose the thread of the conversation because this has relatively quickly devolved into everything that’s wrong with our contemporary politics, most of which is not governed by the Constitution. So is the question, “Does the Constitution require that people have ideas of civic virtue that are similar to mine?” Apparently the answer to that question is “no,” because we have lots of scoundrels protecting mega-scoundrels. If the question is: Does the Constitution require that politicians not lie, or even lie on fateful things, apparently the answer to that is “no” as well. I do think if the question we’re trying to discuss is to what extent the Constitution survives Trump, discussing all the things we don’t like about our contemporary politics isn’t very useful.
And I guess my plea would be: Can we focus this a little bit on which part of this is people making small “d” democratic choices that we don’t approve of or don’t like, and which part of this is actually constitutional? And I don’t think that’s an obvious question. The Constitution requires that we not have unwise wars. And what everyone says about the Iraq war, it was unlike some wars that preceded and succeeded it. It was authorized affirmatively by a Congress that voted in a bipartisan fashion in both houses of Congress, so whatever the problem was there, it was not a constitutional problem.
Dionne: Could we go around the room briefly on the following question: To the extent there is a threat to our constitutional order, how much is this specifically related to Trump, in your view, and how much is this related to developments that preceded him and may continue after him, related to everything from changes in the Court to behaviors in the parties? What is specific to Trump and what is larger that we need to worry about?
Fredrickson: I think a lot of this was incipient or latent in our politics. A lot of the issues Congressman Frank mentioned earlier, about the racial anxieties and the white ethnic base being affected by economic issues that super-charged some of the anxieties around race, have been there. Trump has really taken advantage of that and exaggerated it in a way that has been quite dramatic and frightening, but I think a lot of it has been there.
Frank: I think it’s a combination. I think it is the evolution of capitalism in the West where growth has now become a very mixed blessing. I think it is the inequality, and I think it’s time we relook at Keynes and say we need to put redistribution back in there as an equal good. And I think part of the problem is that neither Clinton nor Obama fully understood that, and I think that created the conditions for Trump.
But here’s where I would take a little bit of exception. I was talking specifically in one area about constitutionalism, and that’s on individual rights. That has been one of the best things about our Constitution: It is the change from 1787 to today on who is fully recognized and has full rights. And there is a constitutional threat to that with the Court, backed by the political one. And here’s where I think Trump is different: He is a triumphant majoritarianist. That is, you have the ethnic majorities in democratic countries feeling threatened and angry, and the change is: They no longer give any credence to the claims of others. They feel that everything in public policy has to go to protecting them. Trump is the inciter of that and it affects constitutionalism in individual rights, it affects constitutionalism in the fact that it does dilute somewhat the check and balance notion, namely that there are a whole bunch of claimants. So I do think Trump, building on that economic dissatisfaction, does play a role that, among other things, is substantially political but does have constitutional implications because it leads to an unchecked majoritarianism.
Wittes: So your question is a deep one, and I guess what I would say separates me from everyone in the room is that I am a Trump particularist. I do think there were some baseline conditions, that there was some significant rot in the Republican Party, but I am less inclined than a lot of people are to see a great deal of continuity between Donald Trump and the Republican apparatus out of which he grew.
So I would say that there are two fundamental problems that are challenging right now to the constitutional order: one is a set of baseline conditions that are characterized by extreme partisanship and extreme partisan polarization, that are characterized by legislative dysfunction and consequent migration of day-to-day management authority of all kinds of things to the executive branch, the removal of Congress from day-to-day policymaking, heightened by a grotesque media environment that fuels all of that. I think that is all one set of conditions that has been a mounting reality over the course of my entire adult lifetime. On top of that we have an acute, not unrelated, but distinct constitutional threat posed by the individual personality, behavior, attitudes, beliefs, and popularity of Donald Trump. And I would treat that as, first of all, as a much more acute problem, a much more severe problem, and one that shouldn’t be treated as merely an extension of the first set of problems because it has dynamics and threats all its own.
Frank: I thought that’s what I was saying; that it’s Trump. Trump’s majoritarianism. Others have been conservative but they have at least recognized the legitimacy of a bunch of different things. Now I agree, I think Trump is very different in that respect. I do think it has constitutional implications.
Wittes: Okay, if we find ourselves in agreement, then excellent.
Valenzuela: The danger with Trump is what we now call “identity politics” and the legacy of that is clear, it’s still the politics of race. It’s still the logical result of the Nixon strategy, of appealing to the doctrine of states’ rights to pull the Democratic Party in the South into the Republican Party, which took a long time. And that’s what ultimately led to the flip of the Republican Party to reverse the federal government’s efforts, mandated by courts, to guarantee civil rights for all regardless of the national origin. And that’s what ultimately led to the flip of the Republican Party from the party of Lincoln to essentially a party that has embraced white nationalism. Trump has been able to effectively mobilize that appeal at a time when technology, not trade, has been changing the economic prospects for many. But economic dislocations are only part of the story. It really is about the fact that 30 percent of the population simply does not accept the fact that the United States has become a much more diverse country—although previous generations have also pushed back on new waves of migrants.
Holtzman: First, there have been, as Ben pointed out, and I think I began to address it when I was talking about Bush and the Iraq War, problems with how the Constitution has functioned in practice. The efficiency or effectiveness of the checks and balances system, those problems and the excessive growth of presidential powers, the hollowing out of Congress as a check, that’s been going on for a long time. If you look at the Gulf of Tonkin Resolution, you would see a supine Democratic Party responding to Lyndon Johnson. There were only two people out of 535 who voted “no” on the Gulf of Tonkin Resolution, so the fact that the Republicans are going along with Trump isn’t a surprise, really.
There are two other factors I’d like to point out. One is the overwhelming power of money now in the system and how that governs Congress; basically, people now are very afraid of losing in a primary, more so than in a general election, because of the ability of the President or the party figures to raise huge amounts of money against you. That has worked to undermine independence and individualism within the congressional system particularly.
The second is the constitutional structure that gives every state equal representation in the Senate. And the emptying out of rural America. The people who are left there are those who resent, most of all, the changes that have happened. And their power way exceeds their population or in fact their needs, so that has distorted as well how our system works. One of the things that Karl Rove discovered, and Donald Trump has carried to a further extreme: Rove realized you didn’t need to win all the people all the time, you just needed an electoral majority. So you don’t need any more to appeal to a majority of Americans, you can appeal just to a minority of Americans who can then begin to shape the policy for everyone through their excessive power in the Senate. And that’s one part of the Constitution you can’t amend, the part about the Senate.
Galston: I actually want to pose a straightforwardly constitutional question: If you look at the assumptions of the people who actually formulated it in the first place, one of the big ones was that people would care about their place in the constitutional order and would want to defend its powers and prerogatives. In other words, that if you were in Congress, that one of the things that you would really care about is Congress and defending it if necessary against the other branches of government. So here’s my question: What difference does it make, if you have at least one parliamentary party in this system that gives almost no weight to the defense of the institution, how does that affect the operation of the constitutional order? Can we really continue to do constitutional business as usual if people are members of institutions whose constitutional powers they fundamentally don’t care about?
Fredrickson: It’s a fundamentally important question: How do you have checks and balances when there isn’t some mutual agreement between the parties that the executive has to obey the law and then Congress actually has a constitutional role?
Holtzman: I’d just modify that by saying the party in power has huge power. It’s not just that the Republicans are following the President, but the timidity of the Democrats is kind of overwhelming here. For example, why are the Democrats not exercising more serious oversight powers with regard to the refusal of people to come and testify or turn over documents in their inquiries? I mean there is an inherent power of contempt. They are unwilling to explore and to use it or even commence an impeachment inquiry. I mean there are things that the majority in power in the House could do. They’re not doing it. I don’t know if this is the result of a kind of overall timidity that has affected both parties in Congress, a real reluctance to flex the powers that they have in a serious way, or whether something else is at work. I don’t just put the problem on the fact that the Republicans aren’t standing up to the President. I look at, where are the Democrats? And to me that’s a very serious question and I don’t know the answer to it.
Frank: I’ll begin with a sharp disagreement with that. Because I think Nancy Pelosi is a very thoughtful, very tough strategist and is doing this in the best possible way. I don’t think you can simply assume that 90 percent of the country is with you and go forward. But I think on the constitutional question, Bill, the problem is, I’ll go back to my concern about the economy. The anger over this economy, the consensus in favor of economic growth . . . We have been fighting since World War II over two ways of doing growth, supply-side versus demand-side, conservative versus liberal. At this point the problem is that growth now has become a source of dissension in itself, and now ideology has taken over and has drowned out, certainly for the Republicans, any institutional concerns. I wish there had been more institutional concerns.
And on the war thing, ever since I’ve been in Congress, the reason you have an executive domination in the war power has nothing to do with executive overreach. It has entirely to do with congressional ducking of responsibility. And by the way I blame others in this. When Barack Obama, for the first time in my memory, said I’m not going to send in the military unless Congress agrees, and the Republicans who controlled Congress refused to do that for Syria, and the New York Times attacked him. Where were the people who want [congressional] strength on war powers to say you know, Obama did the right thing because he specifically refused: He asked Congress, they said “no,” the Republicans didn’t want to do that for him.
I agree though, in the other areas, Congress has been much more supine because the ideology has taken over the Republicans. I would add, though, that what it’s taken over is the Republican primary electorate, and that is what’s the factor. The last thing I would say is this, I should have added this before: The question is not just whether we can survive Trump but whether we can survive Mitch McConnell. I think his role in undermining the Constitution—the Merrick Garland thing was the single most outrageous thing I’ve ever seen done by congressional leadership, and that is a big part of the problem that we have.
Wittes: With respect to Congress, it is an immense challenge and you know there’s a whole Federalist Paper that it contradicts. This is Congress’s attack on Federalist No. 51, in which Madison poses as the ultimate protection of liberty that ambition will be made to contradict ambition. And in this instance, we have a long-term pattern starting in the war powers arena but extending into all kinds of other areas in which Congress is shoveling out the door its authority and doing so increasingly for partisan reasons.
This poses a really interesting challenge to left-of-center people, which is something that libertarians have been warning about for a very long time—and in the 1930s, this was the very issue that gave rise to the non-delegation doctrine cases. And liberals responded to that with horror and instituted that allowing broad delegation powers to administrative agencies—which is a polite liberal way to say to the executive branch—was essential to letting the government do things. And now we have discovered that we’ve really denuded Congress of the habits of doing its own work. The Supreme Court this year, this past term, had a non-delegation doctrine case for the first time in a very long time [Gundy v. United States]*.
[Editors’ Note: The non-delegation doctrine holds that one branch of government cannot delegate to another duties that the Constitution assigns to it—in this case, that Congress, in writing laws, should not cede too much authority to the executive branch agencies that execute the laws. In general, conservatives support non-delegation and liberals oppose it, because the former want a limited administrative state while the latter want a powerful one. Delegation is how the executive branch enforces a broad range of regulatory laws. Conservatives have wanted to impose non-delegation for a long time, and there were hints in the Gundy decision that a future Supreme Court majority would do so.]
I am very uncomfortable with any sort of revitalization of the non-delegation doctrine, but I think if we’re going to have this conversation, we have to at least consider the possibility that the libertarians may have been on to something to simply pass these very broad bills that say “executive branch go figure it out . . . ”
Tomasky: I want to address this to Liz, and then invite everyone else to share their comments as they wish. It builds on Bill’s question. And of course I want to ask you this because you were there, and we have you here at this table, so it would be silly not to ask you. In 1973 and ’74, when you spoke to your Republican colleagues on the Judiciary Committee, and in the House more broadly, about what Nixon had done and what he’d been charged with and about Congress’s responsibility, did you feel from them a greater sense of congressional prerogative than we see today, a need to defend Congress’s interests against the executive? Were they better constitutionalists? I tend to think that you’re going to say “yes,” but maybe we’re all sitting here romanticizing that, so I’d be very interested in what your answer to that is.
Holtzman: Well, it’s very hard to say. I didn’t have that many conversations with Republicans over these issues although, in the end, in the House Judiciary Committee, we should remember that the articles of impeachment were drafted by a group of Republicans and Democrats, something that’s inconceivable today. And when we did our impeachment inquiry, [Chairman Peter] Rodino picked a Republican to be the counsel for the House of Democrats, and he did that very deliberately to send a message that this was going to be a fair process.
I think Republicans didn’t come out in favor of impeachment until just before we started our debate, which was ten months after we started the impeachment inquiry. On the other hand, I don’t know whether there was something that was idiosyncratic about the Republicans who decided to vote for impeachment or whether it was because of the districts they represented.
Remember, we had three Southern Democrats whose districts were at least as virulently pro-Nixon as some of the Republicans, and they all supported the impeachment vote. So I don’t know what motivated them. One of the suggestions that I made to the Democrats in Congress now is talk to some of the Republicans who served on the Judiciary Committee during Watergate about how they addressed the issue and how they approached the issue of impeachment. I don’t know that that’s happened.
Dionne: There’s one very big difference between Nixon and Trump. When Watergate happened, Democrats controlled both houses of Congress, and, therefore, the entire process began much earlier. As soon as Nixon was inaugurated for his second term, you had the whole summer of 1973, and in the early going, the Republicans were just as pro-Nixon as the Republicans are now pro-Trump. And so the whole process was different. The groundwork was laid already by 1974 in the way it wasn’t now. I’m curious what does that mean, does that distort our view? Liz you seem to disagree with my take, so go ahead?
Holtzman: The Senate moved in part because Judge [John] Sirica, a conservative Republican judge, sitting on the case involving the Watergate burglars, said “I smell a rat, the Justice Department is not asking the right questions, Senate, Congress, you have to do something.” The Senate acted in response to that. Secondly, the House leadership. The Senate finished its hearings by mid-August 1973, they’d heard Dean, they’d uncovered the taping system in the White House. What do you think the House leadership did about this? They did nothing. Not only did they do nothing. They were opposed to doing anything. They didn’t say it. They never went out and said we’re opposed to doing impeachment, they just didn’t do it. It was impossible to move the House forward, impossible.
What happened? Saturday Night Massacre. That moved the House because the American people said, “We’ve got to do something.” The American people didn’t know exactly what that something was and whether it was impeachment, but they thought we’re not going to have this kind of system anymore. It was a different story from now. Nixon won in an overwhelming landslide. Trump squeaked through. Americans won’t have to change their minds about him. Americans had to change their minds about Nixon. That’s a very big deal. And they did. And I think in response to what Barney said about Nancy, I wasn’t making an attack on her. People have forgotten that what happened during Watergate was a process of educating and persuading the American people and Congress at the same time.
Frank: Nancy Pelosi hasn’t forgotten that. She’s working at it.
Holtzman: I’m not attacking her.
Frank: It is an attack on her. She’s the Speaker and is setting the tone of the strategy.
Holtzman: That’s an unfortunate understanding of what I’m saying.
Valenzuela: The fact that the Southern Democrats controlled a lot of the committees then, and the fact that they hadn’t all drifted into the Republican Party, did mean that Senator Sam Ervin from North Carolina played a very important role in this whole thing. The context is very different today.
Wittes: That’s actually related to the point I was going to make. I agree very much with Liz’s characterization of this. There are a few additional factors that I think are salient. One is there was an ongoing criminal trial. And it’s not just in the context of Sirica, what Sirica did, Jim McCord turns around and writes this letter to him and says “Hey, there’s stuff that hasn’t [come out yet], right?” So imagine if Michael Flynn had turned around and said I have a lot more to say, and Bob Mueller never asked for it. The congressional posture would be rather quickly very different, and I think that’s a very important point that she makes.
The second thing is that there is a huge, huge difference between the congressional posture now and then that we haven’t talked about, and that is the role of a certain committee chair and now ranking members on the Republican side. I’m thinking specifically of Jim Jordan and Mark Meadows and Devin Nunes and Bob Goodlatte, to some degree. It is very hard to overstate the perniciousness of their roles. And specifically, the perniciousness of their roles relative to certain individuals in the executive branch. And there was a decision made by the President and his congressional allies to fuck up the lives of a bunch of executive branch lawyers and FBI agents, and it was done incredibly ruthlessly in a punitive fashion with respect to their activities in this investigation. It was done in order to send a chilling message. It has had that effect, and there is no analogue to that in the Watergate period.
Galston: I want to expand a point that Ben made, expanding a point that I made. Let me put a thesis on the table for you to react to. What Trump has done is to expose the consequences not just of broad changes in society but the consequences of decisions that Congress has made over a period of decades, and not just the War Powers Act. Let me give you an example: The President, it turns out, has extraordinary powers to make trade policy, powers that the Congress of the United States deliberately gave him. And what this is exposing is that we have certain norms and assumptions about the way congressionally delegated powers should be used, assumptions that turned out not to be correct. And this is a constitutional question.
Frank: But I disagree. I was there when some of these were made. I voted against NAFTA, for example, but I think the difference is this: The political attitudes toward those things have changed. When Clinton did NAFTA, most members of Congress voted to ratify it, and they thought that that was good. What’s changed is the political understanding of globalization because the nature of the economic impact has changed. So I don’t think this was a case where Congress was betrayed by giving [Clinton] that. What’s happened is a radical shift in the perception of what the economic impact of trade is.
Wittes: I’m very sympathetic to the premise of this question. We have all of these areas where we’ve made laws. Some of these are embedded constitutional law. The vast broader majority of them are statutory law, in which we’ve given the President vast authority to do all sorts of things: slapping tariffs on countries, for example. And we’ve done it with the assumption that the President’s oath of office means something. And we’ve done it with the understanding that you might disagree with him about NAFTA, you might disagree with him on X, Y, and Z, but he took an oath of office to protect the Constitution, and that means something to him. It might not mean exactly the same thing to him that it does to you, but it’s not meaningless.
And now you find that all of those authorities—the scope and range of what you can do with them is much vaster than you ever imagined because you imagined that people would only use them for sane public policy purposes. You didn’t imagine that people would use them for expression of vanity or anger or any hundreds of other caprices. The range of policy possibilities has expanded enormously into areas that include the use of authority for purposes that are not policy-based—for example, because you don’t like the British ambassador. Those are waters we didn’t play in before, and those delegations become much more fateful and dramatic when all of a sudden they’re not confined by either policy consensus or, I don’t know how to say this delicately, normal mental health.
Fredrickson: I think it’s important to distinguish the personal activities of the President from the administrative state. I mean, we could go back to a sort of pre-New Deal, Constitution-in-exile version of the United States, which would be completely unfunctional.
There’s actually some very good work that’s been done, including by this professor Jon Michaels, about the administrative state and the constitutionalization of the administrative state, which speaks to how Congress, through its delegations—which are not broad—actually give very clear direction to the agencies about what they’re supposed to do in terms of developing the regulations, but the regulations themselves are subject to a whole kind of constitutional process of notice and comment and the kind of legal standards that they have to be held to. There are bad regulations and there are appropriate legal challenges, but we have a fairly good system for controlling that. I think the constitutional question about over-delegation is way overstated in terms of the impact on our personal liberty or freedom and the Constitution.
Valenzuela: I was deputy assistant secretary of state in charge of the relationship with Mexico when we worked on NAFTA in the Clinton Administration. I was involved in the negotiation of the labor and environmental side agreements that helped bring many Democrats on board and allowed the President to endorse the treaty, which he had opposed during the campaign.
Dionne: Actually he was for it, he endorsed it, but then had a whole bunch of criticisms. I happened to cover the campaign that day, it was a very tricky thing he did.
Valenzuela: As I noted, I was very much involved in the negotiations, but the point I would like to stress is this: Trade Promotion Authority, what used to be called Fast Track, is something that is in fact necessary to be able to undertake negotiations with foreign governments. You can’t have the Congress negotiating these sorts of agreements, even if the negotiation authority can and should include a mechanism for congressional consultation. What’s appalling is the use that President Trump has made of this delegation of congressional authority. To threaten Mexico with tariffs unless the country addresses immigration issues is not only a violation of the law, but also of the manner in which policy should be developed, in many cases a violation of the Administrative Procedures Act. There’s nothing whatsoever in the delegation of authority that allows that. Congress needs to be much more precise in defining what the delegation of authority really is, but that doesn’t mean that it doesn’t have a role.
Wittes: Just to clarify very briefly, I’m not making a substantive point about trade policy. And I’m not even objecting to delegations of power. All I’m saying is that when you have broad delegations of power to the executive branch to do things, they lie around like loaded weapons for somebody who is then in a different zone both politically and emotionally to pick up and do crazy things. Exhibit A in that is the travel ban, which has been subject to a broad delegation of congressional power.
Holtzman: Just look at the words “national security,” which Trump has misused in terms of trade policy to determine that he can impose tariffs in some circumstances where in my opinion there is no national security issue. I’m sure Congress thought of national security in a very narrow way when it drafted those law, believing that the term had to do with either war-making powers or intelligence issues or something like that. But you’re exactly right. Congress has learned or should learn that it’s got to be much more careful in its drafting because otherwise we’re going to see what Trump has done expanded logarithmically in the future. Because presidents now see that they can claim anything is national security, and that means they can do whatever they want. And that’s pretty terrible.
I also think that there’s another problem, which is that we don’t have an effective enough way of checking the President. You need to be able to overcome a presidential veto in order to be able to stop things, such as war-making, and that’s not always easy to get done. I don’t think that the Framers always anticipated that the only check would be a two-thirds majority of the House. That really has to be thought through, because it’s been ineffective in terms of checking the President. Also we have the impeachment power to check the President. It’s a very cumbersome power to use, and Congress is very loath, as you can see, to use it.
Dionne: In light of their respective attitudes toward their responsibilities to the Constitution, comparing Trump to Nixon is unfair to Nixon. True or false?
Frank: Well if I had to pick between the two, I’d pick Nixon. He clearly was blatantly abusive in some ways but on human values, on race, he’s clearly much better. I mean the demonization of people and the appeals to prejudice make Trump much worse in my judgment.
Valenzuela: Equally despicable. As Nixon saw the handwriting on the wall once the impeachment got underway, he resigned. He lost the presidency—but he did not go to jail.
Wittes: Comparative despicability is a mug’s game, but I do think there’s some reflection that’s worthwhile on the specific qualities of the despicability, because they are different. Nixon was evil and was extremely dangerous. The phrase “Hypocrisy is a tribute vice pays to virtue” comes to mind. But he observed certain forms in public. It was important to him to be understood as a conventional politician, and in important ways that was actually disciplining for him. One of the scary things about Trump is that he’s not bound that way, and he actually doesn’t understand the office and the system well enough to even know when he’s transgressing. So, to give you a really bracing example of this: Nixon privately demanded the investigation of his political opponents. He would never do it in public. And Trump routinely does it in public. And Nixon privately ranted against people in law enforcement whom he didn’t like. He didn’t publicly denigrate the law-enforcement apparatus of the country by way of discrediting entire institutions that he needed to rely on for things.
This is not a paean to Nixon’s virtue by any means. But, look, the damage that Trump has done to the institution of the FBI and the institution of the Justice Department is largely a function of his willingness to do these things in public, and I do think we sometimes let him off the hook for that because it’s so clownish in appearance. But it’s a set of damages that Nixon did not manage.
Fredrickson: One thing that seems different to me is Nixon is more of an understandable venal and power-hungry politician, whereas Trump seems like he can pull the whole system down and he wouldn’t even care. And then some of the people behind him like Steve Bannon are—that’s really their agenda, destroy the system. And that seems like an incredible difference between the two of them.
Dionne: So we have a Constitution written long ago. In the course of this conversation people have alluded to difficulties. What changes do you think this document needs, maybe one or two in this moment, or do you believe that it doesn’t need to be changed?
Valenzuela: I would go back to some of the things that were mentioned earlier. Let’s make sure that over the long haul the Supreme Court doesn’t get away with its recent decision on gerrymandering.2 It’s actually critical to ensure fair and representative elections. I was struck that the Court ignored the precedence established in Reynolds v. Sims, Baker v. Carr, and Wesberry v. Sanders, the essential decisions that sought to enshrine the importance of the principle of one person, one vote. If the essence of our constitutional democracy is popular representation and popular sovereignty, every citizen’s vote must count equally. In my view, this goes beyond having districts designed by independent tribunals—we should be considering important variations of proportional representative voting systems to ensure all views are represented.
Wittes: I want to answer your question in two ways. One, I would snap my fingers and change, in honor of Bill Galston, would be to require Australian-style mandatory voting. I can detect no meaningful derogation of people’s right to self-expression or non-self-expression as a result of it. I was with some Australians recently and they were talking about their 90 percent voter turnout, and I really can see very little disadvantage to this.
but nWe have gotten through this conversation without an extended discussion of the President’s predations with respect to the law-enforcement apparatus of the country. I don’t think there’s a quick fix to this in constitutional law, but we’re at a point where one of our two political parties is openly contemptuous of the notion that law enforcement should be apolitical in application. And the other is flirting with the idea—Kamala Harris the other day declared that she would supervise the prosecution of Donald Trump if she was elected. And this kind of rhetoric that the President is engaged in, and certain Democratic candidates are dipping their toes in, would have been unthinkable in either party until only very recently.
We have to ask the question: Is it okay in our constitutional order to, when you elect a President, vote on who’s going to get indicted, which is what we’re groping toward here? I think to articulate that question is also to answer it, and we need to figure out a way to breathe life back into the norm of apolitical law enforcement. I don’t know how that is resolvable by changing the Constitution. In fact, I think it’s not, but I think it’s a more urgent problem if we’re going to remain a democratic society than any constitutional change that I can sit here and dream up.
Frank: I begin with a quote from Lester Maddox, who said that he could not do prison reform until they gave him a better class of prisoners to work with. I think our biggest single problem now is the voters. The biggest single thing in American politics today is that people don’t vote in primaries, and that’s why you have the right-wing takeover of the Republican Party. The 2010 elections damaged the Republicans who had voted for the George Bush program for dealing with the financial crisis: Bob Bennett, Michael Castle, Kay Bailey Hutchison. And that scared the Republicans.
What worries me today is there is an effort to do a similar job on the Democrats with Alexandria Ocasio-Cortez and Rashida Tlaib and Ilhan Omar, and I think that is a problem. I was very happy to see the New York Times note that the people active on social media are not the people representative of most Democrats, but there is a conspiracy between the Republicans, the media, and Alexandria Ocasio-Cortez to exaggerate her influence within the Democratic Party.
As far as changes in the Constitution? Getting rid of the Electoral College. We started ranked-choice voting in Maine, and it worked pretty well. I think a popular vote with ranked-choice voting for the presidency would be the way to do that. On the Senate, I would like to get more equal representation. You’d have to have 40 more senators from California to make up for Wyoming, so how would you do that? Maybe you wouldn’t get to exact equality, or you’d get a Senate that looked like the parliament in India. But those two are major obstacles to what’s happening.
But none of that works until we get the people in a better mood, and that’s why I think the single most important thing we can do is to change our economic system so that we give a much higher priority to equity. Until we do that, here and in other countries, you’re going to have a very angry majority public, and it’s not easy to have a good system when that’s the case.
Tomasky: Barney, if we’re waving wands here, why not just abolish the Senate? Why does it need to exist?
Frank: I think that would make sense. One of the most significant things in our recent history in sending our country to the right was the Panama Canal Treaty. A lot of liberal senators from those one-congressman states, [Wyoming Democrat] Gale McGee and others, got beat because of the Panama Canal Treaty. That was a significant event in turning the country to the right.
Holtzman: I think it would be a terrible idea. Go back to Watergate. Two critical things happened in Watergate that were definitely the result of the Senate’s actions. Number one was of course the Senate Select Committee. That committee was vital to the impeachment. Impeachment probably wouldn’t have happened without that. For example, the committee uncovered the taping system among other things. Number two, the Special Prosecutor Archibald Cox was a direct result of the Senate’s saying we’re not going to confirm Elliot Richardson as attorney general unless you appoint a special prosecutor. I guess if the House also had confirmatory powers it’s possible it could have done the same thing. But you also had some pretty impressive senators who were willing to buck the system. They were strong enough to do that, like Kennedy, like Ervin. I don’t know that you find those kinds of people necessarily in the House.
About constitutional changes, I agree about something to do with voting. I don’t know that necessarily getting everyone to vote is going to be a solution. I don’t know that there are such outstanding elected officials in Australia. I’d just make some other small changes, maybe not so small. Number one, the pardon power needs to be amended so that presidents can’t use it to affect the outcome of investigations of themselves. Secondly, we need a special prosecutor system that deals with ensuring investigations, professional, independent investigations of the President and the President’s top officials. And third, we haven’t talked about this at all, is something about campaign finance reform.
Fredrickson: Just a note on the Senate, because I worked for Senator Daschle when all four senators from the Dakotas were Democrats and pretty progressive. I think we’re in a different era now, so I don’t think we can go back to that, but it definitely it wasn’t always this way. As far as constitutional change, I think most of the changes that we see right now with the Constitution come out of what I think are very flawed Supreme Court decisions. So I don’t know that the Constitution needs to be changed to address gerrymandering, for example. If we had a change in the Court, I think we’d get back to the right understanding of the Constitution and its support for democracy. The same with money in politics, where I think Congress has an absolute role in constraining the way that money is spent in elections that’s not equivalent to free speech.
Since it’s explicitly in the Constitution and there’s nothing we can do about it, yes, the Electoral College. I agree with the congressman. There’s no reason to have it any longer.
Tomasky: Thanks to everyone.