By Rich Lowry
Sunday, March 17, 2024
If there’s one thing that we’re supposed to know about this election, it is that democracy is on the ballot.
Joe Biden and other Democrats say it all the time, and so does Liz Cheney. According to the former congresswoman, the U.S. is “sleepwalking into dictatorship,” and the accomplished author and historian Robert Kagan wrote a much-discussed piece for the Washington Post contending, as the headline put it, that “a Trump dictatorship is increasingly inevitable.”
It’s understandable that people are alarmed by Trump. His conduct after the 2020 election was appalling and impeachable, and he, of course, exhibits zero regret — in fact, the opposite. It is not to defend anything he’s done or said, though, to point out that it is beyond his, or anyone else’s, power to end democracy and establish a dictatorship — at least, not without a whole lot of help that won’t be forthcoming.
We can stipulate that if Trump loses in November he won’t concede the election and, in all likelihood, will engage in the same kind of pressure campaign to change the result as he did in 2020.
The new Congress counts and certifies the electoral votes, and it takes a majority of both houses to sustain an objection to a slate of electors. If Trump is defeated, there’s a significant chance Republicans won’t have a majority in the Senate or the House (or both), making it impossible to sustain challenges to electors.
Even if Republicans had majorities in both chambers, they would probably be slender ones. Assuming his claims are as meritless as the first time around, would Trump get the near-unanimity he’d need in both houses to overturn the election? Would Republicans in a new Congress really want to make trying to do the bidding of their twice-defeated presidential candidate their first act? Even if Trump could get almost all of a Republican majority in the House, the Senate would be a different proposition. Trump would start out without the votes of Susan Collins, Lisa Murkowski, Mitch McConnell, Todd Young, and Bill Cassidy to name just the most obvious.
It’s worth noting that no state officials anywhere went along with schemes to deliver their states to Trump in 2020. No Trump-appointed judge did his bidding. Perhaps everyone would be more pliant this time around, but the “Stop the Steal” stalwarts who have been hit with ruinous legal fees and embarrassing legal judgments, or who had to make shamefaced guilty pleas, are a cautionary example.
In 2024, a defeated Trump would be operating from a much less powerful position than four years ago. He’d be a private citizen rather than the president of the United States. The vice president presiding over the electoral count in Congress would (at least one assumes) be Kamala Harris rather than a veep picked by Trump and personally lobbied and pressured by him prior to the count. (Not that the vice president has anything other than a ministerial role, something the Electoral Count Reform Act clarifies.) And Trump would have lost two presidential elections in a row, which, one hopes, would begin to reduce his sway, even if only a bit.
What if Trump wins and becomes president again? If we continue to play this thought experiment, would he, say, cancel the midterms? Well, first of all, the president has no control over congressional elections. He’d need Congress to try to do it. Even assuming an indefinite suspension of elections would pass muster with the courts, this is another, even more absurd scenario. Again, he’d need near-universal Republican support, which is impossible to imagine (and 60 votes in the Senate, assuming the filibuster hadn’t been repealed). Would Republicans really want to go back to their districts and states and say, “Sorry, we aren’t planning any more congressional elections”? The end of American democracy probably wouldn’t poll very well.
Under the Constitution, by the way, the terms of all the House members and a third of the Senate would expire. So people who have spent most of their adult lives trying to attain a congressional or Senate seat would be vaporizing their own jobs. Back to the private sector they’d go, after having committed the foremost act of treachery in American history by effectively dissolving the United States Congress.
This is the stuff of a Philip K. Dick novel and, in the right hands, would make a compelling dystopian Netflix series. It’s not remotely plausible.
How about Trump, as the incumbent president, running for a third term in 2028? This, too, is a fantasy. He would be unambiguously barred by the U.S. Constitution from running again. States would keep him off the ballot, and whatever the exact permutations of the practicalities and legal reasoning, the Supreme Court would surely end up backing them up in light of Trump’s straight-up ineligibility under the 22nd Amendment.
Could he simply stay in office despite the expiration of his term? Whether Trump continued to occupy the White House past January 20, 2029, or not, he’d no longer be president after that date. Also, any intimation that this was his intention beforehand would, of course, create a massive firestorm, and institutional Washington — most importantly, the U.S. military — would shun him and recognize his duly elected successor.
Both of the presidential candidates actually on the ballot in 2028 would presumably denounce him if he said he was going to stay — the Democrat as a matter of course, and the Republican as well, unless he or she wanted to get tainted by association with an infamous scheme prior to a national election.
It’s very hard to say, “I lost the election, but I’m staying in office, anyway,” something Trump didn’t dare say in 2020. It’s much harder to say, “I didn’t even run in the election, and I’m staying anyway.”
So none of the literal “ending democracy” scenarios make sense. That doesn’t mean that Trump’s third run and a second term wouldn’t stress the system; they’d do it in ways that have precedents, though. Trump’s critics are loath to admit this because they don’t want to concede that recent Democratic presidents and Trump’s opponents are guilty of their own abuses.
As mentioned, Trump won’t accept a defeat, which — even if he can’t get anyone to do anything about it — undermines the legitimacy of the system in a damaging way. But Democrats never really accepted his victory in 2016, and would likely go even further to reject a Trump win in 2024. They, too, are happy to trash the system when it doesn’t produce the hoped-for outcome.
If Trump follows through on some of his rhetoric, he will engage in politicized investigations and prosecutions of his opponents. This is exactly what happened to him and those around him in 2016 and afterwards, though, and it’s the reason he will be sitting in a New York City courtroom as early as next month. Politicized prosecutions are wrong, but those understandably freaked out by Trump’s threats never think to apply this standard to their own side.
It’s possible to imagine a Trump White House, if frustrated by lack of congressional action on a given issue, taking waiver authority meant to be applied on a case-by-case basis and applying it categorically. This, of course, is exactly the approach used by Barack Obama and Joe Biden to find a way around the immigration laws.
Trump, too, could issue dubious executive actions that no one has standing to challenge in the courts, finding a loophole around the rules. Again, Obama and Biden did the same.
A more extreme scenario would be the Trump administration simply defying or ignoring a court ruling. There’s nothing from the first term, at least, to suggest that a Trump administration would want to pull an Andrew Jackson in this fashion. It complied even with decisions it strenuously disagreed with, and duly fought them in the courts. (Joe Biden went further than Trump ever did by issuing his eviction moratorium after a majority of the Supreme Court rejected his power to do so — and Biden himself admitted that he was really just playing for time until the Court squarely closed off his options.)
If Trump did want to go there, it’d hardly be a given that underlings would follow. Remember: When Trump told White House counsel Don McGahn to fire Robert Mueller, McGahn went back to his office and did nothing. (McGahn even ignored Trump when the president told him to demand a correction from the New York Times when it reported about the incident.) There’d presumably be more such resistance from within and — if the issue were really pushed — resignations and politically destructive chaos and recriminations.
Those most fearful of Trump seem to think that we are in a state equivalent to the Weimar Republic, with the regime so weak that it just needs a good push to collapse. But the American constitutional system has been remarkably enduring and stable, and it still retains broad and deep public support. It obviously survived a civil war. Frontal assaults on it will engender a fierce reaction. Also, pretty much every power center in the system would, once again, be hostile to a President Trump.
In short, most of what we are likely talking about is forms of threats to the legitimacy of the electoral system and to the rule of law — in spirit or actuality — that we’ve already seen for a decade and a half or more. That’s not good, obviously. What we should want is someone who will slam the brakes on this slide toward an unmoored executive. But that option isn’t on the ballot this year.
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