Trump-Proofing Democracy

The latest tariff fight provides yet another reminder of the urgent need for this project.

The whole SCOTUS/IEEPA debacle has got me thinking about one of my favorite topics: how to Trump-proof our federal government.

If you have a toddler or, in my case, a furniture-scratching cat, you learn how to set things up to avoid destruction at their hands/claws. And those two creatures are cute. This team is not merely uncute, they’re uniformly lacking-of-conscious, power-hungry, and willing to violate laws and norms, often in the pursuit of racist goals.

And that unique, if benighted, skill set has enabled them to be quite good at hacking democracy. By which I mean finding all the places where laws are vague enough that they can interpret them however they want. They can exploit the fact that the legal system can be clunky, so they can break the law and wreck havoc while the the law catches up, or, of course, stack the courts their way.

For example, any law that conditions its activation on an “emergency” is total hack bait for this crew. The admin argued that the trade deficit was an emergency, despite the fact that it’s been that way since the mid-70s, though the high court (and various lower courts before that) didn’t buy it. Undocumented immigrants, in their model, are creating a crime-wave emergency, which gives ICE the authority to mask up and act without warrants at best, and to unaccountably kill civilians at worse. The fact that those killers and their bosses all the way up have not been held to account is not just remarkable, but is another guidepost is this quest for Trump-proofing.

So, how do we Trump-proof our gov’t and case law such that the next authoritarian crackpot who gets elected based on promises to “lower prices on day one” but instead sets out to enrich himself and enable henchmen like Miller is forever blocked?

I’m not a lawyer and this project requires lawyers (calling Norm Eisen!) but commonsense suggests some version of the following:

—When this is over, there must be accountability. Severe punishment must be meted out for those who broke the rule of law and those who stood by supporting them. The purpose is not revenge. It is to disincentivize the behaviors we’ve seen by sharply raising their personal costs.

—It’s a huge project, but we must clean out a lot of legislative sludge. Consider the multitude of old statutes lying around for the president to cherry pick from in setting tariffs without Congress. I see no reason not to suspend them all, on the very real basis that a major rethink and rebalancing of import taxation is required. More broadly, the practice of reaching back for dusty old rules that should have been purged decades ago should be disallowed, which means adding expiration dates, just like the ones on your yogurt.

—In the same spirit, we must erect steep barriers against the unitary executive. At least for a set time period, require Congress to approve presidential actions, including executive orders (EOs). Trust me—I’ve been there—I know, given Congressional dysfunction that will outlast Trump, that this is a recipe for do-nothing Congresses to bleed over into the executive, but the absence of Congressional deliberation is a huge, costly, missing piece of democracy right now. And the idea that we are governed by EOs that flip whenever a president from the other party is elected is just downright toxic. It also provides an excuse for Congress to not act.

—Again, sticking with this spirit, there needs to be more much political pressure on Congress to claw back power from the executive. Again, even this SCOTUS recognized that the power to tax—tariffs are an import tax—lies with Congress. Even in my lifetime, Congress once flexed far more authority in international trade policy. Same with warmongering, which both parties have lazily allowed to become a presidential power. Do you understand why it’s okay for this president to kill people in speedboats in the Caribbean, cuz I sure don’t?

—The Senate filibuster is a related problem in this space as besides being unfair and unbalanced in terms of representation, it fosters inaction, dysfunction, and non-deliberation.

—The corrupt self-dealing and personal enriching of the executive must be blocked with much steeper barriers than the Emoluments Clauses need upgrading.

Again, not a lawyer, and I really intend this post more to raise the urgency of Trump-proofing than suggesting my guidance is valid. And, of course, none of what we change matters if it doesn’t get enforced, so that too must be accounted for, as in swift punishments for failure to enforce the law (and, yes, I see the circularity problem therein).

As you know, I try to stay in my lane, but this is an urgent project that needs to launch the day the Orange Menace leaves the building, in no small part to ensure that he doesn’t get to return again!