Speaking before the Ohio Women’s Republican Club in Wheeling, West Virginia in February of 1950, Wisconsin Republican Senator Joseph McCarthy waved a piece of paper before his audience’s eyes, insisting he had a list of over 200 communists working in the state department.
He had, of course, no such list. His anti-communist crusade is now widely characterized as, in fact, a “witch hunt.”
In similar fashion, Donald Trump repeatedly, if only metaphorically, waves around Article II of the Constitution claiming it authorizes him to do, in his words, “whatever I want.”
Of course, there is no such article. Well, the Constitution does certainly include a second article, but that article says nothing of the sort, granting no such authority to the president.
You wouldn’t know that, though, by listening to U.S. Attorney General William Barr who, in a speech recently delivered to the Federalist Society, continued promulgating the “unitary executive theory,” a rather distorted rendering of the Constitution premised on the assertion that this founding document endows the presidency with broad powers checked by little oversight. According to Barr, “This is not ‘new,’ and it’s not a ‘theory.’ It is a description of what the Framers did in Article II.”
But let’s just read the opening of the second section’s second paragraph of this article, which states that the president,
“shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States . . .”
If one actually engaged the text, it seems hard to ignore the clear and definitive authority imbued in the senate. Presidents must, in many cases, garner the consent of the senate to enact their decisions and policies.
Even the first paragraph of this section concludes by authorizing the president to grant pardons and reprieves to those who have committed federal crimes, “except in Cases of Impeachment,” meaning the president cannot override a congressional judgment in an impeachment case. And, of course, the fourth and final section of Article II states, “The President, Vice President and civil officers of the United States, shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
In short, if we actually read Article II, we can see that at every turn the authority of the presidency is checked and constrained by congress.
It seems Barr is on a witch search. Only in this case the non-existent witch is that of unlimited, uncheckable executive authority that Barr and his ilk are searching for in the Constitution, claiming to have found it in order to empower and excuse the autocratic behaviors of our witch doctor of a president.
And despite the prevalence in Article II of references to the impeachment process as a powerful check on presidential authority, Barr nonetheless, in his speech to the Federalist Society, insists that the current impeachment proceedings are not a realization of our principles of constitutional democracy but rather an undermining of voter intent.
He declared, “In waging a scorched-earth, no-holds-barred war against this administration, it is the left that is engaged in shredding norms and undermining the rule of law.” He continued, ”The fact is that, yes, while the President has certainly thrown out the traditional Beltway playbook and punctilio…he was upfront about what he was going to do and the people decided they wanted him to serve as President.”
So, let’s get this straight. As long as a president lets us know in advance he is going to run roughshod over democracy and abuse the power of his office for private gain, effectively handing over decision-making to foreign powers, it’s all ok? And congress should not exercise its constitutional obligations and powers to curb that behavior and undermine voter intent?
Voter intent? Does Barr mean the intent of the Electoral College? After all, the majority of voters did not intend to install Trump as president.
Additionally, as I’ve suggested elsewhere, the system of checks and balances crafted in our constitutional democracy puts a check and balance on the people as well. Impeachment is one of those checks and balances, enabling congress to, indeed, undermine voter intent.
It’s not stealing an election; it’s practicing democracy as define in the Constitution.
More to the point, what we see in Barr’s thinking—and behavior—is the outright and outrageous defiance of democracy that has become an increasingly flagrant tendency in the United States, gathering a dangerous momentum these days.
As I wrote about last week, we have in recent months witnessed state senators fleeing the statehouse and going into hiding to prevent the democratic majority from passing legislation to address climate change. One senator even threatened the state police with armed violence if they sought him out. Additionally, we saw the North Carolina house stealthily overturn a budget veto while democrats were at a 9/11 memorial event, after indicating the house would not be session during the memorial.
These behaviors and tactics are nothing short of a flagrant defiance of democracy.
The likes of Barr, who is supposed to be the jurisprudential conscience of the nation and the guardian of our democratic law and order, is now modeling, validating, and fomenting this defiance of democracy.
And, in a grave dereliction of his office, he is grossly re-writing the Constitution to do so.