The Supreme Court has given Presidents the power of kings, but they either don’t realize it or imagine such power will only ever be used to further their partisan causes. Joe Biden and the Democrats needs to show them their mistake.
If we believe what we’re saying about the nature of the court’s ruling and what it does to our democratic order, then Biden needs to use the new power he’s been given to restore the Constitutional order just as Abraham Lincoln used the extraordinary power he possessed during the Civil War to preserve the same.
In using the military to arrest members of the Maryland legislature and suspend the right of habeas corpus, Lincoln understood he was taking actions that violated individual rights under the Constitution, but he believed the Constitutional order that protected everyone’s rights to be in danger if he didn’t act. He couldn’t allow strict adherence to Constitutional principles to result in the end of the Constitution.
There is substantial public evidence that we are in a similar moment. There are public statements by Christian Nationalist leaders of their intention to overthrow democracy and establish a theocracy. The recent documentary “Bright Shiny People” showed evidence of the Christian Nationalist group known as the Institute in Basic Life Principles training its own army. There are right wing militia groups around the country doing the same. Some participated in the Jan. 6 insurrection, demonstrating the threat they pose. At the same time, there are billionaire technology leaders who have suggested that America should be an autocracy run by them. Still others on the Right have argued that autocracy is necessary for a time to “restore” America, which really means restoring their particular tribe of people to power over everyone else on a permanent basis.
The campaign of Donald Trump has aligned itself with these forces and put forth a plan for his administration that many see as a blueprint for dismantling freedom and democracy in America, although he now denies knowing anything about it. Meanwhile foreign powers have been attacking American democracy for years and may be assisting these domestic forces in their ambitions. Wealthy individuals who support these ambitions and special interests that stand to profit from them also appear to be funneling large amounts of money to these efforts, often in secret. There are reports of US Congressmen falling in line to support Trump and his people only because they fear for their safety as death threats against those who don’t fall in line are becoming rampant. Finally, the Supreme Court’s recent rulings and behavior, including the acceptance of large financial gifts from wealthy right-wing individuals, suggests that members of the Court itself may be in on these efforts.
The notion that Biden and the Democratic government should accept such a broad-based attack on the Constitutional order because a more forceful response would violate the Constitution is to ignore that the Supreme Court has eviscerated the Constitution. Yes, sticking to Constitutional principles may position Democrats as the ones upholding those principles in contrast to Republicans. But that isn’t going to make a difference in votes if people don’t see the impact. If Biden doesn’t use the new powers he’s been given, many people aren’t going to believe it’s because he’s principled. Instead, they will just be convinced that the Justices are right in saying that all the king talk is over the top and that there isn’t any real threat to democracy from either the Court or Trump. Either that, or it will make Biden and the Democrats look as though they are too weak to protect the country from such a threat.
Admittedly, there is a risk of a backlash against unconstitutional actions that could undermine Biden’s support. But this can be prevented by emphasizing that the purpose is to demonstrate the dangers of the Court’s ruling, defend our Democracy, and to pressure the Court to reverse itself.
Specifically, the government needs to take action to establish clearly what is going on. We have anecdotal evidence and statements of intent, but we need a full systemic understanding of the threat to democracy and clear evidence of intentions.
The President needs to direct the Justice Department, the NSA and the CIA to conduct a broad-based investigation into the threats to our democracy utilizing the full surveillance and electronic monitoring capabilities of the federal government. The secret donations and secret meetings need to become known and understood. The involvement of foreign powers and their relationships with public officials, media organizations, journalists, political parties and candidates for office need to be fully uncovered. All plotting against the government and infiltration of the same by anti-democracy forces must likewise be uncovered. Those intimidating people through death threats need to be unmasked and arrested.
Directing agencies to engage in such investigations is among the things that the Supreme Court ruled that a president can do without fear of prosecution in the future. And while they also stated that his subordinates do not share the same protection and therefore could be subject to prosecution for violation of laws governing wiretapping and surveillance, the Court also said that the President can pardon anyone for any reason even if his purpose is corrupt. Therefore, Biden need only issue a pardon to anyone taking any action in furtherance of accomplishing the investigations. For good measure, he can pardon himself for issuing illegal orders.
The only recourse Republicans will have in the wake of this will be to attempt impeachment. He will have to make sure that the Senate Democratic caucus is on-board enough to protect him. Legally and rhetorically, Biden’s response should simply be that his actions can’t be high crimes or misdemeanors if the Supreme Court has said they are legal. He should further state that he takes these actions as part of his duty as president to defend the Constitution against all enemies foreign and domestic.
It should be noted that his position would be all the more unimpeachable if he weren’t still running for office.
In taking these actions, Biden should state that he agrees that they are wrong and violate the Constitution that existed before the Supreme Court ruling. But that’s not true any longer under the new Constitution that the court has created. He should then implore the Court to restore the previous Constitutional order and warn that if they do not, he will go further.
And the Democrats and Biden should absolutely be prepared to go further if the Court doesn’t reverse itself. Allowing the risk that Trump will be elected with the powers the Court has granted is unacceptable. Biden can illustrate why if the court doesn’t choose to reverse.
If the court doesn’t reverse itself, Biden and the Democrats should seize full control of the government by doing the following:
- Through presidential order, arrest and detain the 147 members of Congress who voted in 2020 to overthrow the government as well as any members who aided and abetted the effort before or since, including by saying the insurrectionists did nothing wrong and should be released. This should include Speaker Mike Johnson. The New York Times has the list here: https://www.nytimes.com/interactive/2021/01/07/us/elections/electoral-college-biden-objectors.html
- When taking this action Biden should:
- Use only law enforcement and military who volunteer
- Grant everyone involved a pardon
- Also arrest any members of Congress found to be involved in plotting against democracy by the investigation previously launched.
- Detain them in a location where they can be prevented from casting a vote in Congress. In other words, no electronics and no phones.
- Call Congress into session with Mike Johnson and at least one or two other Republicans forcibly made present if necessary to create a quorum, which only requires a majority in both chambers.
- Democrats should then introduce a motion to vacate the speakership, which will easily pass with just Democratic votes since the detained Republican members won’t be present to vote.
- Then Democrats elect a Democratic speaker.
- In the Senate, Biden will need to detain at least 16 Republicans and be able to count on all Democratic votes to get past a cloture vote. That probably means he has to detain 18.
Biden cannot rely on just any group of federal agents to carry out any of these orders. He needs to carefully choose those who believe in what he’s trying to do. For this, he can have loyal people ask probing questions about each agent’s politics as the Court’s ruling now means that the Hatch Act no longer applies. Indeed, any law that depends on penalties against individuals, including the Posse Comitatus Act, can be swept away with the pardon power.
All this is, of course, is third world banana-republic stuff. But that’s also the point. This is what the Supreme Court has made possible. Trump and his MAGA administration will not be afraid to do these kind of things if he is elected. But Democrats will be doing it to restore the Constitutional order and that is key.
Having seized control, the Democrats should do the following:
- Pass legislation setting the number of Supreme Court justices equal to the number of judicial circuits, which would increase the number to 13. This will only require a simple majority in both chambers once past the cloture vote in the Senate.
- Immediately install 4 new Supreme Court Justices to the Court and designate Jackson as the Chief Justice.
- Justice Jackson and the new court should then use any of the cases that arise from these actions to immediately reverse the previous ruling and affirm the lower court’s finding.
- At that point, the Republican Congressional members should be released and things can go back to the way they were.
Of course, Trump may respond by rallying his supporters to insurrection in response. This is perhaps the greatest danger. But this will also allow the invocation of the Insurrection Act and the arrest of his supporters if necessary. The threat of that alone should be enough to stop it.
Every step of the way, Biden should make the point that this is what the Supreme Court authorized with its ruling. They did this, not him, and they can undo it at any time by reversing the ruling, upholding the lower court and thus restoring the Constitutional order. This, it should be pointed out, is the whole point of this action – to restore the Constitution not to undermine it. And the end result will be the restoration of that order one way or another.
Everyone concerned about the public reaction should read the history of Lincoln’s actions in Maryland as instructive. They feared they would cause a Confederate uprising in the state but the actions instead emboldened Union supporters who ultimately turned out to be the majority.
Authoritarian movements work through intimidation, fear and threats. Actions taken that make people feel safe in opposing them can lead to an increase in support for democracy and democratic norms. Moreover, taking such extreme measures to protect freedom and democracy need not mean they become the norm. They can instead be restorative of norms, which was ultimately the case in Maryland.
Now is not the time for standing rigidly on principle while democracy falls. Limits on power in a Constitutional system ultimately aren’t maintained by good people honoring constitutional norms. They are maintained by people with power using power to limit other people with power. It is a system of checks and balances. The whole system is designed to distribute power so that different powerful people and groups can act as checks on other powerful people and groups in the hopes of creating a balance of power that maintains freedom and democracy. But that only works if principled people are willing to use whatever power they’ve been given to maintain that balance. If the balance is not maintained and people see all the power going to one man, they will see safety in aligning themselves with that man and that man’s power will grow. In such a circumstance, to prevent a king, Biden needs to act like one.
No one has stated this more clearly and cogently than The Liberal Redneck, Trae Crowder. Everyone should watch his statement in full:
https://twitter.com/traecrowder/status/1808594012234002764?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1808594012234002764%7Ctwgr%5Ea02e99e6e90036ff77dc4201b8aaf14efd921392%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.dailykos.com%2Fstories%2F2024%2F7%2F3%2F2251180%2F-If-you-don-t-know-Trae-Crowder-the-liberal-redneck-check-this-video-and-follow-him