The proposals in The Pledge to Safeguard the Constitution would restrain presidential conduct while still leaving enough power within the executive branch to confront national security threats, and yet would also do exactly what the President's supporters have propounded by keeping the matter in the hands of the voters in the 2020 election - although with a strong caveat:
The Founding Fathers were less concerned about leaving all matters "in the hands of the people" as they were about something much more integral to our constitutional order: the preservation of its system of checks and balances. They in fact created a democratic REPUBLIC that put up barriers AGAINST "the popular will of the people" running rampant in ANY form: the electoral college and the powers of the states and localities to counter an overbearing federal government are two of the most obvious yet often controversial examples of this.
And the Founders worried particularly about a President having too much power WITHIN that federal system.
Yet, the Trump administration has used Article II to justify its right to take military action and to frustrate congressional subpoenas looking into that military action; to fire Attorney Generals and Inspectors Generals; as well as to assert that the executive branch is "absolutely immune" from testifying before Congress regarding these and other matters, and that the courts have no role in settling disputes between Congress and the White House.
The Trump Justice Department asked for the dismissal of the House Judiciary Committee's motion to enforce the subpoena of Don McGhan "for lack of jurisdiction," arguing that impeachment is an "interbranch dispute" not "traditionally thought to be capable of resolution through the judicial process."
The logical questions are: If a conflict over a matter as intractable and divisive between Congress and the President as impeachment doesn't lend itself to resolution by the third branch of government, then exactly WHAT conceivably could?
And if "interbranch disputes" are "not capable of resolution through the judicial process," then exactly how WOULD they be resolved?
It is necessary to see through one of the major theoretical pillars of the unitary executive theory in order to refute its proponents' response to these questions: that "the people will decide" the answers to these and other matters by voting the President in or out of the only office for which ALL of the voters of the nation cast a ballot.
Taken to its extreme, the "peoples' will" could justify anything the citizenry voted to make legal.
And similarly, the President could do anything by declaring a national emergency under the broadest interpretation of the unitary executive theory.
Imagine your moral outrage - and how wholeheartedly you would fight against it - if the American people decided to "vote to express their will" to return to one of the original foundations of our Constitution: the re-enslavement of African Americans.
Or consider your reaction to a multitude of other issues you might fall on the "losing" side of under the same principle: issues of war and peace; or sexual equality; or of a President overruling governors on state issues that you favored.
Trump's defenders use the unitary executive theory to look past the checks and balances which LIMIT presidential power and Congress's legitimate oversight responsibilities concerning the executive branch (even regarding issues of magnitude such as impeachment or military action) by relying on "the peoples' will" as the affirmation of presidential authority (most ironically, even though Trump's very election itself was the result not of "the peoples' will", but of the electoral college which was created as a "check" AGAINST their will).
For years, spokespersons for the Trump Administration have used "the peoples' will" to deflect scrutiny concerning the President's personal shortcomings by declaring controversial matters as "settled" with defenses such as "the people rendered a decision on that in the 2016 election, and they don't care about the President's taxes."
In fact, many people voted for Trump DESPITE that fact that he did not release his tax returns; or that he had allegations of an unsavory history of sexual misconduct and business dealings. And there are actually many millions of Trump supporters who have expressed extreme disdain for the way the President has comported himself while in office and would like to see his behavior change - but who may vote for or against him despite these misgivings.
Furthermore, instead of expressing the people's will "through the President," Trump misuses Article II as an excuse for advancing his own political and legal self-interest by projecting a decades long crafted mirage of his own PERSONAL willpower: the fabrication initiated as the "tough guy boss" on The Apprentice that he can just overpower anybody or anything and "will" what he desires if he projects an image of infallibility, acts strong and tough enough, bluffs, and obstinately refuses to give in.
This is the very behavioral pattern that caused Donald Trump to repeatedly DOUBLE DOWN on issue after issue and which led to his impeachment.
For example, one can assume that the President wanted to "reverse" (and then "top") the impression of himself cowering from protesters in the White House bunker by creating the alternative narrative of "forcefully busting out" and taking a walk through the crowd to St. John's Church with the power of the United States military clearing the path "ahead" for him - without fully thinking through all of the implications.
The problem was that there was no actual destination "ahead" because Trump has no clear sense of where he wants to lead the country. With all the fanfare the walk produced - did it lead to any great proclamation or policy decision? No. Only to images of Trump and his entourage walking through the trails of gas used to disperse peaceful demonstrators and then mulling about like dopey puppets mesmerized by the cameras - so that Trump could misuse a Bible as a manipulative political symbol.
But President Trump did us an enormous favor with that walk.
The searing image created by the military forcing American citizens off the streets for a hollow photo op meant to create the image that he can “overpower” anything in front of him was an evolution of Trump's abuse of the law to hide from his accusers, to abusing the law and combining it with military force as a ruthless weapon against his opponents; and it magnified the dangers of the powers of the presidency without constitutional restraint in the hands of a man unable to use them with wisdom.
Now as Donald Trump sends armed federal agents into Portland, Oregon and other cities throughout America, we have been alerted to the true motives – and dangers – of his actions: that he is attempting to “dominate” our “streets” and institutions through the illusion of his personal willpower backed by the actual physical powers of the United States federal government.
The reelection or defeat of Donald Trump should not be viewed as a mandate on any single aspect of the President's behavior or policies, most importantly on the unitary executive theory itself.
Neither the President's nor the public's "will" conveyed through any single avenue can be allowed to trample over the checks and balances of our constitutional system. No single issue should be regarded as permanently "settled" - and no President as empowered to "do anything I want" - by what are always the mixed results of "the peoples' will" in an election; nor should the populace be allowed to "vote" to trample over the rights and liberties of other individual Americans.
Donald Trump, future Presidents and all politicians must be held to an acceptable level of conduct, kept within the bounds of the law, and be made to exhibit respect for the separation of powers that keeps the executive branch - and government itself - in check.
A failed impeachment may seem to have been like spitting in the wind.
But to do NOTHING in its aftermath would be indefensible and would profane the efforts of all of those individuals and institutions who have fought to protect our constitutional way of life.
A legislative branch and citizenry that only cowered before a President as the executive branch ran amok over their legitimate constitutional powers would be abdicating the exertion of their own legitimate "political will."
Both houses of Congress will have the power to frame legislation around the Pledge to Safeguard the Constitution so that Congress can reclaim the powers it has ceded to the executive branch.
And members of both political parties could take this less divisive step without directing it specifically at any particular President and set their sights on a loftier endeavor than impeachment: to repairing the constitutional fabric which Donald Trump and our inattention to it has frayed so that impeachment would become an unnecessary relic of the past instead of a political tool perpetually proposed by those from EITHER party who don't like what are the always imperfect results of an election; and presidential emergency powers would be used for the common good, instead of being potentially misused by an unscrupulous leader against the very population they were intended to protect.
Each Republican and Democrat should ask himself or herself if they want the powers claimed by the Trump administration under the unitary executive theory to be left available to a President from the other party.
And politicians from each party should be asked SPECIFIC questions by both journalists and voters regarding what proposal in The Pledge to Protect the Constitution they support or DON'T support and to make their justifications explicit.
Voters should hold politicians from both parties rigorously accountable for how they adhere to The Pledge AFTER the election - so that once in power they will not just hang on to the same authorities as the Republican and Democratic parties have been historically inclined to do.
But ultimately the fate of our nation won't primarily be determined through the results of an election - whether President Trump wins or is replaced by a Democrat - and it won't principally be the politicians we elect or what they do that will be the sole, full expression of "the people's will."
It will be what we the American people do individually and as an expression of our collective willpower both before and after those elections which has the potential to turn the national wreckage of impeachment and the social turmoil that has followed it for the last several months into something constructive.
The "collective popular will" gets expressed through a myriad of obscure subconscious cultural forces in a process which produces unintended political compromise and social evolution. It is the result of our individual actions magnified by the collective interactions of our institutions. Elections are only one dimension of this manifestation.
The incredible creativity and resilience of the American people - as has been displayed during the COVID-19 crisis in a multitude of ways, such as by learning how to make our own face masks and other personal protective equipment; and then by the self-discipline of demonstrators fiercely but peacefully advancing the cause of racial and social justice after the killing of George Floyd - is the true wellspring of our national greatness.
Because of Donald Trump's failure to draw together our differences and direct these creative forces to their most noble ends, we must inspire one another to protect our constitutional system so that our country can fulfill its highest potentials.
New revelations about Donald Trump will continue to bubble up. His further attempts to “dominate” our streets and our political processes will need to be repulsed through our legal channels and with our ballots.
We will continue to find new solutions to the problems we face as a nation.
But these solutions – and the will to implement them - won't primarily be the result of activities from inside the political establishment.
They will come from all levels of our federal system and all walks of life: by means of law enforcement officials and prosecutors conducting ongoing investigations in New York and other states; through mayors and legislators in cities and on other local levels pursuing justice; via civil suits and the actions of individual citizens asserting the right to advances their causes; and from all kinds of well-intentioned journalists, political activists, foundations and institutions as these smaller individual springs of the "American popular will" stream forth into their fuller collective dimensions.
This may be a rare time in history when rational Americans of all persuasions could take a stand FOR and learn to coexist politically with this common sense set of proposals to limit presidential powers.
Making the Pledge to Safeguard the Constitution an issue in the 2020 elections would be a serious step towards opening a wider debate on restoring the balance of power not just between the executive and legislative organs of government, but more importantly of the relationship between government and the American people themselves.
And the process will hopefully draw enough citizens away from the fringes of the political system into a more rationally centered, dynamic era where we ourselves will begin to more fully shape the institutions of our own self-governance.
© 2020 Alex Crisafulli. All rights reserved.