Rescind 2017
Except for an indeterminate number of umbrage-Americans, everyone knows that Someone needs to do Something if the United States is, to use Franklin’s formulation, to keep its republic. The problems that stymie believers in the rule of law are who, what, and how.
Our Constitutional system includes a remedy, impeachment, for a criminal president. It now includes a remedy, the 25th Amendment, for a president who is physically or mentally unfit for office. Sadly, it does not include any remedy for a presidency gained through a suspect or tainted election, or for a situation where those responsible for enforcing the remedies are as tainted as the president himself and where no one in the presidential line of succession is free from taint.
Even a thorough and impartial investigation of the 2016 election might be unable ascertain whether its result was legitimately determined. The Mueller investigation, assuming it is allowed to proceed to a conclusion, may determine whether Trump actively participated in election skullduggery, but not its extent or effects. Independent of the election, Trump’s egregious corruption and incompetence in office make him a widely-recognized danger to the welfare of the United States and its inhabitants, as well as to the world at large. Yet we are paralyzed. (Does anyone, by the way, believe that even with a Democratic Congress, a Democratic president as demented and criminal as Trump would have lasted even this long?)
I have great admiration for those who are fighting for the republic using the tools of law, including litigation, protest, and stepping up to run for office. Even as these are proceeding, the destruction proceeds apace. Even the tools we count on are being undermined. A presidential commission, nominally dedicated to election integrity, is focused on ramping up voter suppression and has in no way attempted to secure the electoral process from the foreign interference everyone knows will again be attempted in upcoming elections. As litigation works its way through the courts, the federal courts are being packed with Trump appointees. Indications are that these judges are not being selected because of their fealty to the rule of law. Their presence may well change the ultimate outcome, lending a veneer of legality where it is not merited.
Any suggestions?
Here is mine:
Amendment XXVIII
Section 1: Any change, alteration, or modification of the laws of the United States or to the composition, officials, powers, or policies of any branch of the government of the United States effected between January 1, 2017 and the effective date of this Amendment is hereby rescinded and shall henceforth be deemed null.
Section 2: This Amendment shall become effective immediately upon passage. Congress shall set a special election in a timely manner to replace officials whose terms expired as of 2017.
Why Rescission?
Every day brings a fresh outrage to the laws and government of the United States, whether it’s a tax law that massively redirects wealth from the middle class to the wealthy, an assault on the regulations that protect consumers, employees, or air-breathers, or an attack on the civil rights of one group or another. Almost all of these actions leave the United States, its inhabitants, and the world as a whole worse than the day before. Rescission of the whole is much simpler that piecemeal restoration of the status quo at the end of the Obama Administration. It would save time and energy that could be used to legislate actual improvements.
Rescission is an improvement over either impeachment or 25th Amendment removal when the administration in question has been acting as consistently as this one to undermine the interests and welfare of the country as a whole. While either of those remedies would rid us of the immediate threat of a president who might at any time start World War III on a whim (and removal of that threat would be a significant improvement) it would not solve the problems of government by the beneficiaries of hostile interference, or all the damage the American people never voted for.
Moreover, neither impeachment nor 25th Amendment removal would in any way affect the Republican coup de tribunal. Rescission would remove judges who have been chosen not on the basis of qualification but on the basis of loyalty to a corrupt regime. The Republican Senate notoriously blocked Obama’s judicial nominees to leave the field clear for a Republican president to stack the courts with Federalist Society picks, loyal only to him and their donors. (For anyone unfamiliar with the Federalist Society, it is an organization that invokes the memory of the Founders to lend a veneer of plausible-sounding legal rationales to the enterprise of systematically redirecting resources from the middle and working classes to the wealthy. It’s a lucrative gig for a lawyer, though not necessarily an honorable one.)
Rescission also has one very practical advantage for ordinary Americans. Instead of having to decide every time they pick up the phone whether the most urgent thing to tell their senator or representative is to oppose the tax bill, support health care, oppose treason, protect the Dreamers, pay some damn attention to Puerto Rico, or address any one of a host of pressing needs, they only have to tell the staffers they are calling to support the Rescission Amendment. It’s a much less exhausting task.
Why a Constitutional Amendment?
People who value the rule of law understand that it should not be easy to undo a presidential administration, even one that makes as thin a pretense of legality as the current one. Sadly, it has been all too easy for a determinedly vicious Trump to undermine many of the accomplishments of Obama. The United States should not be a seesaw where each administration undoes the previous one. Undoing the Trump Administration should require a high bar. (An amendment requires a 2/3 majority in both houses of Congress and ratification by ¾ of the states. Presidential approval is not required.)
A Constitutional Amendment could only be passed by Americans working together. While it would certainly generate opposition from white supremacists, wealthy donors, and anyone else invested in the current administration, it could only be passed by Americans working together for the common good, something our country badly needs to see. An amendment would send a message, to ourselves and the rest of the world, that the United States is still a nation that struggles to live up to its ideals, and that we are still better than Trump.
It would not be easy to pass a Rescission Amendment with Congress and so many state legislatures in the hands of Republicans who have shown again and again that their loyalty is to donors rather than constituents. Unlike the Watergate generation, which eventually steeled itself to face unpalatable truths, the current generation of Republican legislators would probably roast their constituents on a spit and serve them with barbecue sauce if their donors demanded it. The only way they would pass an Amendment would be if they were faced with an irresistible degree of unity and persistence.
Will this solve the problem?
There is no simple solution to the problems of the Trump Administration. Even if all the legal abominations were reversed, it would take years to restore the fabric of American society and to regain the trust of groups that have been threatened and disrespected, not to mention that of the rest of the civilized world. And that is not even counting the things that can be done to improve matters over the way Obama left them. The sooner we can get started, the better.
Isn’t this ridiculous?
Of course it’s ridiculous, but is it really more ridiculous than the situation it’s designed to remedy? The Trump Administration has made the United States an international laughingstock, but in a way that does lasting harm to America’s stature and to countless individual lives in multiple ways. In fact, this amendment would probably have the support of a growing majority of Americans who wish to God they could have a do-over.
While I don’t imagine this amendment itself will actually happen, I am offering it as a challenge to our nation’s best legal minds in hopes that some of them will have some viable ideas to restore our country. I do believe that the defenders of the rule of law should be as imaginative and determined as the forces that oppose it, even if they cannot be as ruthless.
