The last two weeks have been incredible. We entered the third stage of a slow-motion constitutional crisis that began with Bush v. Gore. It’s a crisis in which one political party - always the GOP - smashes a crucial part of the constitution.
In 2000, Bush v. Gore broke the Constitution so that a legal recounting of votes could be stopped. In 2016, the GOP-controlled Senate broke the Constitution so that a nominee to the Supreme Court could be blocked. We were naive to think that the block would only happen once. Because there were no negative consequences for the GOP, they will block a nominee anytime the president is a Democrat and the Senate is run by Republicans. And then in April 2019, we had a third major breakage of our Constitution. The White House simply refused to cooperate with House inquiries and oversight in any way. By simply saying no over and over, the White House stumbled upon a way to neutralize the House, which had swung Democratic at the start of this year.
When the Democrats won dozens of House races in the fall of 2018, pundits and journalists rushed to write stories about how the House would rain subpoenas upon the White House, and force Trump’s financial secrets out. Virtually no one predicted that it wouldn’t happen. The House has the power of the purse and the power of subpoena. Or it used to. Now it has zero power. Who could have imagined it?
This is a shocking discovery. Could it mean that all it takes to kill the world’s greatest constitution is for the Executive branch to refuse to play with one or more other branches? That’s all it takes? The Constitution was held together by an ‘honor system’ among powerful white men? It was an honor system all along?
Everyone, from elected officials, to pundits, to journalists to history and constitutional law professors assumed that the system couldn’t be broken because everyone was playing within the bounds set by the Constitution. Then team Trump basically smashed it. They smashed it by clinging to theories that the Executive has inherent dominant powers. Those theories have been around since Nixon, and the executive has become particularly strong since Bush 43. But it seems that the Trump White House has accidentally found the mechanism to make the executive even more powerful. And that is a simple refusal to cooperate with equal branches of government.
They are now in courts arguing that Congress doesn’t really have the power to oversee the Executive. Who knew!
Make no mistake, this started with Bush v. Gore in 2000 and became entrenched by the time the GOP refused to consider Obama’s nomination of Garland in 2016. Looking at the history, Bush v. Gore had a feel of “we’ll only break the system this once, and we’ll pretend it didn’t happen.” But by 2010 the GOP had decided to break everything. Treat the Democrats as illegitimate even when they win office. Don’t respect the Power of Inquiry that is in Article 1. It’s fairly obvious that if a Democratic House were to impeach, a Republican-led Senate would not proceed with a trial.
We see where this is going. The next phase is to ignore the courts when they rule against the Executive. So in 2020 (or earlier if the Justices decide this is an emergency) the Supreme Court could affirm that House subpoenas are legal and must be respected. However, the White House will then continue to defy and ignore the subpoenas. Congress nor the Supreme Court can enforce the Court’s decision. Imagine a sporting event where the referees are ignored. I think we’re about to see that happen. The Justices are the referees, and they can’t force the White House and Congress return to regular order. The 2018 midterms and the Democratic gains in the House have been effectively nullified by Trump.
And worst of all is that we let it happen. All of us, sitting on our asses. We deserve to have our Republic burned down by these angry old men.