Trump’s Presidency Reveals Serious Flaws In Constitution

The Constitution leaves a lot up to the character of the president. More norms should be laws, the electoral college should be reformed, and there must be better mechanisms for accountability.
President Donald Trump delivers a statement on Jerusalem in the Diplomatic Reception Room of the White House, Wednesday, Dec. 6, 2017, in Washington. (AP Photo/Evan Vucci)

President Donald Trump delivers a statement on Jerusalem in the Diplomatic Reception Room of the White House, Wednesday, Dec. 6, 2017, in Washington. (AP Photo/Evan Vucci)

Professor Leonard Weinberg is a Senior Fellow at CARR, Professor Emeritus at the University of Nevada, and recipient of both Fulbright and Guggenheim research awards.

Despite his best efforts to subvert the Constitution Donald Trump appears to be coming to the end of his presidency. In recent weeks Trump has left many observers with the impression that he has become seriously unhinged: firing officials who voiced disagreement with his increasingly farfetched claims, refusing to sign the COVID-19 relief legislation — then signing it at the last minute,  tweeting and retweeting conspiracy theories, pardoning his cronies, spending endless hours watching television news shows (Fox and now Newsmax)) that support his fantastical dreams of retaining power, and punishing the endless stream of ‘enemies” plotting against him.

Some journalists, John Judis for example, even believe Trump intends to promote mass violence in Washington and elsewhere on January 6, the day when Congress is scheduled to reconfirm Biden’s election to the presidency.  The violence would then provide a dubious justification for Trump declaring an insurrection and calling on the military to keep himself in power — what might be called the” Latin American Gambit.” A far-fetched notion.

Other observers though have breathed sighs of relief, claiming the Constitution worked.  The courts, including the US Supreme Court, have dismissed virtually all lawsuits brought by Trump’s lawyers.  State legislators have refused to overturn the election results. The Electoral College has met and affirmed Biden’s victory.

The only problem with this conclusion is that the Constitution has not worked.  It may be reassuring to say that it has, but the reality is quite different.  By following its provisions, judicial decisions made in their pursuance, and the norms that have grown around it, the country has suffered four years under the leadership of a destructive individual who has been either indifferent or actively hostile to the principles of constitutional democracy — precisely the result Article 2 of the Constitution was designed to avoid.

To make matters worse, the constitutional rules governing the removal of Trump and other similarly troubled presidents/vice-presidents (e.g. Richard Nixon) are awkward and cumbersome. Impeachment and removal from office, as we have witnessed, requires a drawn-out and complicated process which, at least these days, is highly partisan. The DOJ’s Office of legal counsel memos asserting that a president can’t be indicted perhaps should be re-examined.

The 25th Amendment, which provides for the suspension of a president’s powers in the event she/he becomes incapacitated, remains.  But this procedure requires the assent of the president’s cabinet officers – all appointees of the president and therefore highly unlikely to apply it.  In the early years of the Trump presidency, there was some talk in the press of invoking the 25th Amendment, but nothing came of it.

It may seem shocking to many but the way in which American voters select their presidents bears a strong resemblance to the way many Latin American democracies choose theirs.  This is not a coincidence.  Many countries in Latin America adopted constitutional provisions based on the American example. Such Venezuelan presidents as the late Hugo Chavez and, at least in his first term, Nicolas Maduro, were chosen in approximately the same way American voters chose Trump in 2016.

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A better way of selecting America’s leaders?

As Juan Linz, the late Yale political sociologist, and a long list of other observers have contended including Woodrow Wilson, presidential systems of executive leadership suffer from serious flaws, many of which we have suffered thanks to Trump, among other issues, they create inherent tension between the president and parliament.  Oftentimes this relationship becomes antagonistic.  Not infrequently mutual hostility leads to deadlock, to situations where it becomes impossible for anything to get done within the framework of the prevailing constitutional system.  Such situations tempt presidents to break the stalemate by issuing executive decrees having the force of law.

Many of the developing nations in sub-Saharan Africa have suffered from the same problem as the United States.  In Guinea, Kenya, Uganda, and elsewhere on the Continent presidents who have apparently lost competitive elections have refused to concede and used the military to maintain themselves in power.

This brings us to what many historians and political scientists in the United States have called ‘the presidential character’.  What types of people get elected president? In the United States, it is widely believed that a successful presidential election campaign is a good test of character.  The successful candidate will have demonstrated to the voters, or at least to large numbers of voters, that he/she “has what it takes” to run the country.

Liars, con men, and demagogues need not apply.  Unfortunately, the electoral weeding out process doesn’t always work. Seriously flawed individuals may succeed in getting elected to the presidency. While the Electoral College was supposed to prevent these types of leaders from rising, it has actually emboldened them. As in ancient Athens so too in the United States: the system seems especially vulnerable to demagogues.

This article is brought to you by the Centre for Analysis of the Radical Right (CARR). Through their research, CARR intends to lead discussions on the development of radical right extremism around the world.

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Uncategorized // CARR / Constitution / Donald Trump / Electoral College