“The Institution That Our Founders Intended”

Daniel Lazare explains the curious synergy between a frozen constitution and authoritarianism

There is a curious synergy between a frozen constitution and authoritarianism. One makes democratic change impossible. But since change is inevitable, undemocratic change is what it serves up instead. The result is “hyper-presidentialism” in the form of Donald Trump.

A recent front-page New York Times article shows how the process works. Written by Carl Hulse, the paper’s longtime Washington bureau chief, it declares: “A Second Trump Term Poses a Crucial Test of the Senate’s Independence.” The subhead is even more ominous: “President-elect Donald J. Trump is threatening to challenge the institution’s historic role, and the Constitution, with his prospective nominees and threats to push the boundaries of executive authority.”

Challenging the Senate’s historic role? Uh oh, cue the soundtrack from “Jaws.” But the Times is alarmed, and so Hulse must be too. Consequently, he has rounded up the usual suspects, who are also duly alarmed.

There’s Ira Shapiro, “a former longtime Senate staffer and author of three books on the institution,” who notes that Senate confirmation “is the central pillar in the checks-and-balances system.” If checks-and-balances are sacred, so must be the pillar that holds it all up. There’s Susan Collins, the centrist Republican senator from Maine, who says that “advice and consent,” the clause in Article II, Section Two, that underlies the confirmation process, is a “constitutional obligation that many of us take very seriously.” Doing away with it would mean “violating the intent of the founders. We would be ignoring specific language in the Constitution, and we would be undermining, in a profound way, the authority of the Senate and responsibility that we have.”

And there’s Senator Chris Coons of Delaware, a Democrat who informs Hulse: “If we allow recess appointments to fill the entire Trump cabinet without confirmation hearings, we take away one of the most important tools senators have. Whether or not the Senate can be the institution that our framers intended is going to be proven one way or the other here in the next two months.”

“Central pillar... constitutional obligation... the institution that our framers intended” — what it all means is that “the intent of the founders” is paramount, that it must be fulfilled, and that we run a profound risk by deviating from it in the slightest. Why? Well, because... because... because they’re the founders and we’re not. They designed the government we’re now trying to make work, even if the task is increasingly hopeless.

Statements from Shapiro, Collins, et al. are so flawed that it’s hard to know where to begin. But the most important issue concerns change and how to deal with it.

This is a fraught subject in America because the revolution that gave rise to the republic had a conservative streak a mile wide. The result, in certain respects, is one of the most change-averse societies on earth. For much of U.S. history, this seemed to make sense. Washington might be a sinkhole, but the rest of the country was doing so well that it seemed advisable to leave the governing structure well enough alone. If it ain’t broke, don’t fix it — this became the national motto. And, indeed, Americans had a sneaky suspicion that political dysfunction might actually be a positive good since it reined in reformers with their troublesome schemes, it kept the radical left out, and it provided a broad range of interests with a seat at the table. Farmers, labor leaders, corporate bosses — all got to play their hand in the great poker game that we call the U.S. Congress. The results could be pretty gruesome, but still, at some higher level, the Constitution seemed to work.

But what happens when the Constitution doesn’t work — when the country grinds to a halt due to political breakdown, when social decay intensifies, and when economic polarization shoots through the roof? What does a nation of Constitution-worshippers do then?

The answer, at least in the short term, is nothing.

An infallible Constitution is a difficult idea to shake. If the Constitution can’t be at fault even though the government it gave rise to is out of control, then the fault must lie elsewhere — in ourselves, most likely. We must not be following the law. We must not be heeding the founders’ intent. We must do better.

The upshot is various academics and politicians blathering about constitutional obligations and the like without noticing that the government machinery is tumbling downhill. Such rhetoric is not just spurious but something even worse: a shadow play meant to disguise the fact that Congress is itself giving up the ghost. Incapable of fixing its problems on its own, it is deferring to an authoritarian who will use very different methods to fix them instead.

Confirmation is at the heart of the battle because it exemplifies how deep the rot has gone. With some 1,200 presidential appointees now requiring Senate confirmation, a process that took 80 days per nominee under George W. Bush now takes 145 days under Biden. That’s nearly double over 24 years. A study by the University of Virginia found that where confirmations accounted for 55 percent of Senate action during Trump’s first term, they now account for 59. Better than half the Senate’s time is thus devoted to vetting candidates for a growing multitude of executive branch offices.

Something must be done, yet everything Congress does makes it worse. In 2011, the Senate created something called “privileged nominations” for those thought to be uncontroversial. The idea was to unclog the system by putting some appointments on a fast track so senators would have more time to deal with the rest. Yet privileged nominations ended up taking 50 percent longer. Between 1960 and 2016, the number of positions requiring Senate confirmation rose from 779 to 1,237, a 59-percent increase. The reason, the UVA study explains, is that “the Senate values its leverage over these positions, and the nominees themselves value the honor that Senate confirmation bestows.” In other words, it’s a beauty contest where everyone gets to fuss and preen for the cameras. The more they do, the more others want to do so as well — and so the process grows and grows.

It’s a disgrace. But it’s a self-limiting disgrace because it’s impossible for the procedure to continue to the point where it crowds everything out. The process is untenable, and to quote Stein’s Law (named after the late economist Herbert Stein), “if something cannot go on forever, it will stop.” And, indeed, termination is now upon us, which is why the battle is underway.

So far, Trump is employing a two-stage strategy. Step one involves a rogues’ gallery of high-level nominees whose chief purpose is to generate shock and awe on Capitol Hill. These include self-proclaimed Christian crusader Pete Hegseth for secretary of defense, CIA critic Tulsi Gabbard for director of national intelligence, anti-vaxxer Robert F. Kennedy Jr. for secretary of health and human services, and Republican hitman Kash Patel for director of the FBI. Rather than the staid establishment types who filled Trump’s cabinet during his first term, this is a “Wild Bunch” of rebels, quasi-fascists, and dangerous health nuts guaranteed to give someone like Mitch McConnell angina.

But that’s the point. Trump, in effect, is daring senators to say no. If they do, step number two is a scheme by which Trump teams up with Mike Johnson, the arch-conservative speaker of the House, to forcibly adjourn both chambers based on an obscure clause in Article II, Section Three. It’s a novel interpretation that the libertarians at the Cato Institute are already comparing to King Charles I’s attempt to rule without Parliament from 1629 to 1640, an effort that led directly to the English Civil War two years later. But unless the courts step in, Trump may get away with it. If he does, he can use his recess powers to unilaterally hire and fire. It will be a giant step to one-man rule.

What’s important is that this is not just what Trump wants, but what Congress wants too, even if it is unwilling to say so. It knows it is dying, it knows it is reaching the last stages of decay, and it knows it needs to be put out of its misery. Rather than the cause, Trump is merely a manifestation of institutional collapse. He is an instrument that history brought in to speed the process along. After decades of gridlock, authoritarianism is now taking hold.

What is to be done? When a system is this far gone, reform from within is impossible. Not only does the machinery no longer work, but the founders, in their ineffable wisdom, forgot to include a repair kit to set things right. The Constitution is thus unfixable. Moreover, every last elected official in Washington has been so corrupted by the process that they are incapable of pointing a way out of the wilderness. They’re incapable of viewing the system in its entirety, they’re unable to think outside the box, their historical knowledge is nil, and their understanding of democracy is deeply impoverished.

The only solution lies with an outside force capable of acting on the system as a whole, i.e., the working class. The proletariat is unconstitutional in a sense. It arose in the 1820s and 30s, which is to say after the Constitution went into effect, and not only is it at odds with capitalism, but it is also at odds with the capitalist political structure. Hence, it contains the seeds within it of a radical political departure. The working class is not ready to move yet. But when it does, we will begin to see progress.