It's Donald Trump vs. the Constitution: And all this time you thought his opponent was Hillary Clinton

Trump will trample our rights, a tactic learned from Republican leaders and lead us into a constitutional crisis

Published November 7, 2016 9:59AM (EST)

 (AP/Evan Vucci/Getty/artisteer)
(AP/Evan Vucci/Getty/artisteer)

Whether Donald Trump wins or loses on Tuesday, the Republican Party will be faced with an empowered and animating far-right white nationalist movement that's driven either by a humiliating loss or empowered by a dramatic underdog victory. Either way, one of the big post-election questions will be how much of the Trump platform and populist marketeering the GOP will adopt. Furthermore, it's crucial to ask whether the party will proceed using Trump's defiant ignorance of the rules and traditions of governing at the national level. For the last 17 months, we've observed Trump and his loyalists almost literally giving the finger to the very notion of acting presidential as they accept and even encourage Trump's indecent blurting, screeching and general obnoxiousness.

Likewise, it's not a stretch to forecast that Trump's presidency would continue to operate outside the realm of decorum and decency, even by the standards of some of our worst presidents, much less many of our finer chief executives. It's easy to envision Trump using the power of the White House to incarcerate journalists who tease him about his finger nubs, or especially anyone who attacks his sure-to-be spasmodic policy agenda. It's easy to envision this because he's threatened to sidestep the free press clause of the First Amendment, leaning more toward the British system in which public figures can easily and successfully sue journalists for defamation and the like. It's also easy to predict how Trump might behave toward anti-Trump congressional Republicans. Hell, can you imagine if the Democrats take back the Congress and proceed with an impeachment trial? Would Trump leave office if convicted? If your answer is "yes," you haven't been paying attention.

Trump is going around in the final days of his campaign feeding his poorly educated (or extremely gullible) supporters on a steady diet of bullshit that includes more than a little projection. Not only did Trump attempt to turn the Trump-Is-Erratic-and-Obscene attack against Hillary Clinton, telling his people that she's a terrible example for his son, Baron Von Trump, but he's also actively repeating gibberish about Clinton's would-be presidency sparking a "constitutional crisis." I'm sure Trump overheard someone on cable news using that phrase in the context of criticizing him and decided that it sounded really scary, so he turned it around and is hitting Clinton with it, even though it's quite likely Trump has never actually read the Constitution from beginning to end. (Someone should ask him about that.)

What we know is that Trump's unpredictable behavior would be far more likely to touch off a crisis, either by defying Congress and the courts in a battle over the separation of powers, or by nefarious deeds we can't even begin to predict. The most troubling aspect of Trump's berserker style, however, is how closely it resembles what the broader Republican Party has been up to for years.

One by one, senatorial Republicans have lined up to announce they plan to defy the will of American voters and especially their own constitutional mandate to provide advice and consent on Supreme Court nominees. Their goal is, of course, to hold out until there's a Republican president to appoint conservative justices. Such a stalling tactic, in addition to being extra-constitutional, could mean a bench that's either shorthanded by at least one justice, or incrementally reduced to exactly nobody, depending on how long it takes for a conservative to eventually be elected president. In other words, the Republicans are playing grab-ass with the Constitution and the Supreme Court.

So far, the suspects are:

  • Republican Senate Intelligence Committee Chairman Richard Burr: “If Hillary becomes president, I’m going to do everything I can do to make sure that four years from now, we’re still going to have an opening on the Supreme Court.”
  • John McCain: “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. I promise you.”
  • Ted Cruz: “There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”
  • The conservative Heritage Foundation, meanwhile, is backstopping the GOP as usual. Heritage's vice president of communications, Dan Holler: “You’ve seen John McCain and others talk about the need to not confirm any liberal nominated to the Supreme Court. That’s exactly the right position to have.”

Indeed, the Trump faction, along with the establishment wing of the party, have more in common than each is willing to confess right now, and this is a big one. Neither clique has any respect for the rules (written or unwritten) of American politics. Leaders like Paul Ryan may refuse to adapt Trump's completely insane, completely childish rhetorical style, but it's not that far beyond the GOP mainstream, given how the party fully incorporated the Tea Party's hyperbole and conspiracy-mongering into its arsenal. Trump's inability to conform to the norms of presidential campaigns and, more importantly, presidential behavior was originally conceived by the establishment Republicans from the state level to Capitol Hill, and they've been orchestrating this approach for years now.

We've watched in shocked horror as, on top of refusing to conduct hearings on Merrick Garland's nomination to replace the late Antonin Scalia and refusing to approve any and all future nominees, congressional Republicans have engaged in brinksmanship with the debt ceiling, while forcing the second-longest government shutdown in modern history. We've watched as they've wasted taxpayer money on inexplicably voting to de-fund ACORN, even though the community organizing group ceased to exist years ago. We've watched as they've repeatedly voted to de-fund or repeal Obamacare and then, once they realized it was a futile effort, they resorted to abusing the court system to sue the White House. Why? Because, they said, Obama exempted Congress from Obamacare even though Congress is explicitly not exempted from the law and, in fact, is required to enroll in Obamacare marketplace policies if members want employer-based coverage. And don't forget how the Republicans chose to inflict further damage on the post-Great Recession economy simply as a means of constraining President Obama to one term. Elsewhere, at the state and local level, Republican operatives have refused to issue marriage licenses to same-sex couples, while others have threatened to ignore federal laws and court rulings on a wide range of issues.

Is it so inconceivable for Trump, who has completely abandoned how a presidential candidate is supposed to comport himself, to govern the same way as chief executive? His party is way out ahead of him on this game, even though certain members of the GOP leadership are unwilling to admit it. And it's brutalizing our democracy.

The ultimate irony here is Trump's whole "rigged system" narrative, even though Trump's Republican Party (a phrase I'll be using for many years to come, win or lose) has been ignoring key aspects of the Constitution for at least a decade — fully backed by the gawking, fanboyish mega-dittoes of the conservative Internet, along with Fox News and AM talk radio. By carving up stockpiles of red meat for its crackpot base, the party is indiscriminately shredding the system from the inside. Grover Norquist's vision of drowning the government in the bathtub continues to take shape.

Pay attention, Donald, if you can. Taken as a whole, this is what an actual constitutional crisis looks like: when an entire branch of government goes rogue and seeks to extra-constitutionally and extra-judicially sabotage the other two branches. The modern Republican Party has exploited the notion of such a crisis in order to petulantly get what it wants. No longer is political persuasion and compromise adequate. The GOP has jettisoned all of that, and it's highly doubtful it'll ever retreat to a place of traditional political conformity, the likes of which successfully cantilevered the American experiment for 240 years. It's difficult to diagnose a more necrotic strain of cancer infecting our relatively young and fragile system than this.

By Bob Cesca

Bob Cesca is a regular contributor to Salon. He's also the host of "The Bob Cesca Show" podcast, and a weekly guest on both the "Stephanie Miller Show" and "Tell Me Everything with John Fugelsang." Follow him on Facebook and Twitter. Contribute through LaterPay to support Bob's Salon articles -- all money donated goes directly to the writer.


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Donald Trump Elections 2016 John Mccain Richard Burr Scotus Ted Cruz The Constitution