Beyond Crisis: The End of Our Constitution?

On October 8, 2019, the White House announced in a letter to Speaker Pelosi and to Committee Chairmen Adam Schiff and Elijah Cummings that the Administration would not be cooperating with the House impeachment inquiry. White House counsel Pat Cipollone declared the inquiry to be illegitimate, invalid, and a violation of due process. Or as Trump and some of his allies see it: This is not an inquiry, but a coup.

Alas, legally, there is no basis for any of Cipollone’s claims. That has not stopped and will not stop the White House, however, from stonewalling.

The White House has at least been consistent in their actions and with their words on this matter:

• The Acting Director of National Intelligence, Joseph Maguire, forwarded the whistleblower’s complaint to the Department of Justice’s Office of Legal Counsel instead of to Congress. The Office of Legal Counsel is overseen by Attorney General William Barr. Despite the Inspector General’s conclusion that the whistleblower’s complaint was credible and of “urgent concern,” Barr found nothing in it worth pursuing.

• The White House, as well as Trump’s personal lawyer Rudy Giuliani, acting as a free agent or as a representative of the State Department (where he does not work), has refused to honor Congressional subpoenas  for witness testimony and for documents pertinent to the impeachment inquiry.

• Secretary of State Mike Pompeo has refused to permit himself or any State Department officials to sit for impeachment-inquiry depositions.

• The White House has blocked diplomat Gordon Sondland from testifying before three House committees.

What can Congress do if the White House continues stonewalling and ignoring subpoenas? Congress can hold those in violation in criminal contempt. Congress can even use its power to arrest and jail those who do not comply with a subpoena. Congress seems reluctant to do so.  Bad optics politically?

Congress can also use criminal contempt to prosecute someone who violates a subpoena. Unfortunately, such prosecutions are handled by the Department of Justice, headed by the aforementioned Trump lackey, William Barr.

Congress could threaten to withhold or cut funding to certain agencies or programs. Like jailing violators, this avenue seems to hold little appeal for Congress at present.

Congress can also do what it has done previously: sue to enforce a subpoena. But that requires time, perhaps months, as the suit moves through various courts, ending up, possibly, at the Supreme Court. What happens in the meantime?

Given the lawlessness of the Trump Administration and its disrespect for democratic institutions such as a free press and the separation of federal power into co-equal branches of government, it seems quite possible that even if the Supreme Court ruled on behalf of Congress—a long shot, given its current conservative composition—the Administration would not obey.

We’ve seen this before. In 1832 the Court ruled in Worcester v. Georgia that the Cherokee Nation was subject only to federal law and thus was separate and free from any state(s) within the United States. Therefore, the territory of the Cherokee Nation was free of any legislation by the state of Georgia. As Chief Justice Marshall argued, “The Cherokee nation, then, is a distinct community occupying its own territory in which the laws of Georgia can have no force.”

Unfortunately, in 1830 President Andrew Jackson—Trump’s favorite president—convinced Congress to pass the Indian Removal Act, giving the president control over Indian affairs. Jackson wanted to remove the Cherokee from Georgia and move them en masse West of the Mississippi River.

When the Supreme Court ruling came down in Worcester v. Georgia, Jackson decided to ignore it. He is alleged to have said: “John Marshall has made his decision; now let him enforce it.”

Jackson may not have said it, but he certainly could have been thinking it or acted as if he did. The Supreme Court has no mechanism for enforcing its rulings. It has no army. It has no power to withhold funding or to pass new legislation. If the president won’t enforce the ruling, then what power can the ruling have? Well, none. In the 19th century, the result was the Trail of Tears.

What can we expect in the 21st century if Trump follows Jackson? What would happen if, contrary to all sense and evidence, rulings by the Supreme Court in this impeachment inquiry went against the White House and the Trump Administration? The Court could decide that witnesses must turn up to testify and that documents must be turned over to Congress. If the White House refused to comply then, what’s to be done?

The result, I think, would take us beyond a constitutional crisis. It would mean the end of the Constitution itself. Trust and acceptance of norms support the Constitution. Should the Executive Branch refuse to recognize the Court’s ruling, what power, what value, does the Constitution hold? If the Constitution collapses, where do we head next?

If the states ratified the Constitution, as I have argued elsewhere, then those same states could exercise their sovereignty and form a new constitution. If we can overcome the initial term of chaos, then the good news, the very good news, is that blue states could ratify their own constitution, leaving the red states to join or to form their own union.

Given the execrable policies coming for decades from Republicans at all levels of government—for example, anti-reproductive rights, voter suppression, extreme gerrymandering, anti-immigration, tax cuts for the rich, ignoring Constitutional mandates, the denial of science, and the ignoring of facts—a blue-state constitution could be the best result the Trump Administration will ever produce.

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