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EDITORIAL: Key fixes vital to safeguard our constitutional republic moving forward
EDITORIAL

EDITORIAL: Key fixes vital to safeguard our constitutional republic moving forward

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Wednesday cartoon

However else history may one day view the Trump administration after four years of shaking up government, busting political norms and thrilling a plurality of followers nationwide, this much is sure: The Trump tenure will reveal how fragile our constitutional republic is and how quickly the so-called “American Experiment” can approach failure, leaving some mindful of those ancient democracies whose examples the Founding Fathers hoped would be instructive in our adherence to checks and balances folded into the Constitution. Our sentiment: It’s high time for an overhaul, not to alter the U.S. Constitution, but to safeguard it and this nation’s higher ideals.

Four years ago a 70-year-old real estate tycoon and reality-TV extraordinaire won the presidency by vowing to “make America great again,” run government like a business and drain the Washington, D.C., swamp of special interests. Enough Americans swooned over this bold talk, and in just the right places on the Electoral College map, to give the man a chance.

Today our economy is in ruins and a public health crisis has been bungled to the point of maiming and killing more citizens than might have suffered and perished otherwise. The proverbial swamp has not been so much drained as restocked with corruption benefiting the president’s family, loyal allies and deep-pocketed donors. And the wisdom of running government like a business has never seemed so stupid as Americans more closely evaluate Trump’s finances, debts and business failures.

Yet to be fair, the Trump administration has only highlighted cracks and fissures to which Republicans and Democrats have contributed equally. These problems have mounted so long it’s difficult to determine where each arose and who created it. Consider the matter of abusing issuance of executive orders. Yes, President Trump signs executive orders when he cannot be troubled to do the hard work of pressing legislation in Congress or when Congress tells him no or places constitutional limits that complicate his goals. Yet he and Republicans complained loudly and often before 2017 because his Democratic predecessor, Barack Obama, did the same thing. Announcing his own decision to resort to executive orders, Obama famously announced in his second term: “I’ve got a pen and I’ve got a phone.”

Neither Donald Trump nor Obama was right in any deeper constitutional analysis, but who really created the problem during Obama’s second term as president? Obama or a petulantly obstructionist Republican Congress more concerned with political ends than problem-solving? Or does the problem go back to other presidents and other congresses with Republicans and Democrats swapping roles as elections changed outcomes?

Shortly before Election Day 2020, the Waco Tribune-Herald editorial board expanded one night beneath a harvest moon to include an impressive array of well-informed, intellectually vigorous Waco sages including physicians, attorneys, academia and business folks of varying political and philosophical beliefs. We invited them to join us in a discussion of what Americans could do to fix obvious problems we see in the federal government, including decades of Congress’ ceding critical Article I powers to the executive branch which now won’t relinquish them easily. Ideas for reform came from an enlightening Lawfare blog; a report from the Campbell Public Affairs Institute at Syracuse University, undertaken with No Labels, a nonprofit stressing bipartisan solutions and better governance; and other think tanks and institutions.

Discussion was lively, complete with a fascinating digression into health care led by three longtime physicians. Concern was expressed early on about a nation blind with partisanship and misinformation reeling out of control in an uncertain, often hostile world. During the evening, all tried to avoid pinning too much blame for current problems and instead focus on solutions. Even so, one suggested Donald Trump might have been a better president had more Americans given him time to learn the job instead of attacking him from the start. Another responded that Trump might have been a better president had Republican leadership responsibly and sternly at the outset reminded him of his constitutional powers and limits instead of capitulating to fears of being targeted by his tweets.

One complained our mission that evening might not have been necessary had others reined in Trump: “His handlers and enablers all looked the other way. Their one pole star has been appointing federal judges for lifetime appointments. I think that’s the only thing they cared about. They looked the other way if he wanted to pay $750 in [federal income] taxes and $130,000 to a porn star. They don’t care. None of his people care. They just don’t care. There’s just no common decency. None of us would raise any of our children to emulate the character traits he has, and that’s my biggest problem with the Trump true believers. Does character matter in the president or the mayor or the police chief?”

Simple consideration for one another and rollicking good humor prevailed in our circle even as political differences remained obvious. At one point, someone clearly hoping for Democratic gains on Capitol Hill expressed the hope that “we can control the Senate,” to which a Trump supporter interrupted to say: “I thought we did control the Senate!” Everyone laughed. Which in itself may suggest a national prescription for some, however this election turns out.

“It’ll never happen probably, but I wish we could get back to the time when everybody put the country first rather than putting the party first, and Democrats and Republicans are both guilty of this,” this determined Trump supporter said. “If they would do their political stuff and then sit down and do what was best for the country, then we might not have these problems. I mean, Republicans will say, ‘Well, look what you did to Clarence Thomas,’ and they go back and forth on this and that. But there are sinners on both sides, and the only answer is for everyone to settle down and start putting our country first.”

Yet during discussion about constitutional amendments and votes, someone repulsed by President Trump added this: “How do you have a referendum on the Golden Rule? A lot of this anymore is really about common decency. You have at the top a man who thrives on divisiveness, arrogance, and who can’t help himself with his narcissistic personality disorder, who cannot help the way he behaves. Trump already has said this election will go to the courts. Hopefully [Joe] Biden will come out on top. But you saw this Tuesday night [during the Sept. 29 presidential debate] with Trump’s mention of the Proud Boys. And I remember Trump’s militia driving into Portland. I can’t imagine, and I hope it doesn’t happen, the turmoil and anguish and death that’s going to happen if Biden wins simply because Trump has given the green light to anyone who wants to get out their AR-15. It’s just incredible.”

With partisan fanaticism trumping integrity in government and federal courts erratic in enforcing constitutional checks and balances, even some Republican observers recognize the dangers of a constitutionally contemptuous chief executive. And for those Republicans who don’t see the problem today, they may have reason to reconsider. This editorial is being written as voting concludes and ballots are counted. Some ideas then to fix the mess and level the playing field in ways more fitting in a constitutional republic:

Require Congress to extend or end the president’s emergency authority over declared crises every six months: In February 2019, President Trump declared a national emergency along the U.S.-Mexico border to secure funding that Congress had limited for construction of border fencing, raising concerns about abuse of the National Emergencies Act of 1976. Fallout from this questionable declaration is now being addressed in federal courts, but the clash highlights a serious problem. Each emergency declared by the president remains in effect for a year unless the president chooses to renew it. The House and Senate must meet every six months to “consider a vote” on whether to terminate it, but Congress has consistently failed to do so, which is probably why more than two dozen emergencies remain on the books, some renewed by the president year after year, even as Americans and probably many lawmakers remain unaware such “emergencies” even exist.

Solution: Pass legislation that requires congressional reauthorization of each and every declared emergency every six months or else mandates termination. This would deter presidents from abusing the act for pet projects (such as the border wall) and compel Congress’ greater attention about whether an emergency is still an emergency, if indeed it ever was.

Protect Congress’ power of the purse from presidential encroachment: In declaring a borderland emergency, President Trump felt free to simply funnel money the House and Senate agreed to allocate for other purposes, including funds requested by the Department of Defense to benefit our armed forces. The Republican Senate and Democratic House had studied the immigration situation and agreed to congressional funding for border wall construction at a set amount, employing the power of the purse expressly reserved to Congress by Article I in the Constitution. As Senior Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia recently ruled when this matter came up in his court: “The separation between the executive and the ability to appropriate funds was frequently cited during the founding era as the premier check on the president’s power. In fact, ‘the separation of purse and sword’ was the Federalists’ strongest rejoinder to Anti-Federalist fears of a tyrannical president.”

Solution: Congress must pass a law specifically forbidding funny-money transfers beyond the intent of the legislative branch, especially when Congress has specifically denied funding for a certain purpose beyond whatever it has already allotted, if anything. Obviously, such a bill has a better chance under Joe Biden than Donald Trump.

Pass a constitutional amendment to term-limit the Supreme Court: Historians and legal scholars debate how the U.S. Supreme Court became so politicized, but the entire federal judiciary has become a war zone. Certain individuals have not helped matters in their political behavior before coveted lifetime court appointments came their way. Because of Republicans’ 2020 reversal of their very own 2016 principle of not appointing Supreme Court justices during presidential election years, outraged Democrats now understandably discuss possibly expanding the number of justices on the high court to 13 as a way to even the score. In their column Sunday, our friends David Schleicher and David Gallagher offered compelling reasons why this would not be inconsistent in the federal judiciary today. And the Constitution does not forbid such court expansions.

Solution: We fear court-packing schemes could quickly get out of hand as alternating political parties control the White House. We back a suggestion by former federal judge Ken Starr, who famously defended the president during his impeachment trial. In a Trib column, Starr suggested that instead of lifetime appointments, Congress could set into motion a state-by-state constitutional amendment vote on limiting Supreme Court justices to 18-year terms. This would ordinarily allow each president to two Supreme Court nominations per four-year term, yet allow justices time to make their mark in balancing constitutional safeguards with societal and political challenges. For a society that pretends to crave term limits, this seems a better solution than court-packing.

Redefine who can be an “acting” Cabinet secretary or agency director: Trump isn’t the only president to make dubious high-level administration appointments, but he’s had so many of them that at times it seems we’re watching a White House version of “The Apprentice” in which some appointees don’t measure up, sometimes in stunningly incompetent ways, while others simply fail to show sufficient loyalty to the boss. For whatever reason, the Trump administration has gotten to the point of not even risking some Senate inquiries; it simply makes “acting” appointments for high-level Cabinet and agency posts, skirting the Senate’s constitutional advise-and-consent oversight.

Solution: Congress should narrow eligibility for who can hold unapproved “acting” posts. In a Lawfare blog, Paul Rosenzweig and Vishnu Kannan suggest current law be tweaked to limit such choices to those already serving in the specific departments or agencies involved, rather than rotating someone over from an unrelated department or agency. They also suggest denying salary to “acting” administrators after a set period. Few acting administrators will tolerate that situation for long.

Require federal tax returns for all presidential candidates: President Trump’s vow to drain the swamp quickly became a charade except to voters with blinders in place. During a Trump event in September, donors paid $100,000 per person to get in the door to press Trump for favors, one of which he granted within hours via executive order. And when the New York Times finally unearthed the president’s tax returns, they showed a dizzying array of private deals with foreign governments to which he has shown favor as president. Had we seen Citizen Trump’s tax returns in 2016, more Americans might have thought twice.

Solution: Rather than relying on time-honored tradition, Congress should pass legislation requiring all presidential candidates to disclose tax returns, under IRS audit or not. In fact, it wouldn’t be a bad idea for other elected officials if we’re serious about draining the swamp.

Protect inspectors general: Accountability of elected and appointed officials in Washington, D.C., means little if the forces employed to keep them law-abiding and accountable are compromised by a rogue chief executive. In the past several months, President Trump has fired or removed inspectors general from the State, Defense, Transportation and Health and Human Services departments as well as in the intelligence community because their investigations were perceived as disloyal or threatening. Some problems originate with the 2008 Inspector General Reform Act, which seems not to have anticipated presidents firing inspectors general to hide incompetence or corruption.

Solution: Revise the Inspector General Act to allow inspectors general greater independence and more protections in simply doing their jobs. Strengthening whistleblower protections wouldn’t hurt, either.

Expedite court rulings on contested congressional subpoenas: One reason the Trump impeachment struck us as precipitous is because while the White House transcript of President Trump’s phone call with the new Ukrainian president was alarming, Congress was repeatedly stymied in attempts to subpoena White House witnesses and documents that might have clarified matters. We agree that federal courts must ensure Congress’ subpoena power over presidential administrations isn’t abused or employed in overtly political ways. Yet Congress’ constitutional oversight means little if federal courts don’t back them promptly. And if courts drag these affairs out, oversight becomes farce. The impeachment trial went forward without important evidence and testimony because Democrats feared the federal courts would delay matters.

Solution: Justice delayed is justice denied. Congress should consider legislation mandating prompt judicial action on congressional subpoenas. If it seems unlikely a president will sign such legislation, Congress could establish chamber rules to levy contempt-of-Congress fines against current or former executive branch officials who fail to comply with subpoenas.

Obviously, much more is needed, everything from eliminating self-serving state-redistricting schemes to enforcing the Hatch Act to keep federal employees from engaging in overtly political activity. But the first key is restoring congressional oversight and putting teeth in agencies and laws to safeguard the republic from chief executives acting out of authoritarian impulse, constitutional ignorance or both. This also means individual Americans must do a better job in who they send to Congress. If we send people who vow no compromise, few real solutions will result. If we send people to Congress who cry to the heavens when someone on the other side of the aisle commits malfeasance but look the other way when someone in their own party does the same, little will keep this republic from sliding further into decay.

A few last suggestions: An accomplished scholar in our midst suggested a return to congressional earmarks, banned in 2011, to encourage lawmakers’ time and investment in their home districts and states as well as to encourage more reaching across the partisan aisle to bargain and collaborate in legislation. (Bipartisan support for this is reportedly building.) And a physician suggested introducing a bill promptly conferring legal status or citizenship on the more than 1 million people eligible for the Deferred Action for Childhood Arrivals. For too long, these individuals — many brought to the United States through no fault of their own by immigrant parents — have been treated as minor chess pieces in political gamesmanship. If Republicans really believe in pro-life principles, then continuing this spectacle with innocent human lives is outright hypocrisy. Many of these individuals were raised in America from youth, educated in our public schools (with our tax dollars) and today serve in ways that benefit our society and nation. Many are as American as we are — maybe even more so.

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