Has the U.S. Constitution Failed?
Articles,  Blog

Has the U.S. Constitution Failed?

and I will be your moderator this afternoon. I want to introduce
our panel quickly, before we get to
the conversation. To my left, we have
Carrie Cordero, who is the Robert M.
Gates senior fellow and general counsel at the
Center for New American Security. She’s also an adjunct
professor at Georgetown Law, a CNN analyst, and a
contributing editor at Lawfare. I’ve known Carrie
for many years, and she’s worked on a variety
of national security issues, including electronic
surveillance, national security,
congressional oversight, and a number of other
national security issues– CARRIE CORDERO: Some of which
I think she can’t talk about in the session. And I’m proud to say that I’m a
graduate of American University of Washington College of Law. INTERVIEWER 1: To her
left is Liza Goitein. Liza directs the Brennan
Center’s Justice and Liberty National Security Program, where
she has written extensively on surveillance and the
President’s emergency powers. Liza previously
served as counsel to Senator Russ Feingold,
chair of the Constitution Subcommittee and Senate
Judiciary Committee, and a [AUDIO OUT] trial
attorney at the civil division of the Department of Justice. Liza and I have also worked
together for many years on a variety of
surveillance issues. And Chris Edelson,
who you all probably know very well, who’s the
assistant professor here in the department of government. His research interests focus on
presidential national security, power of the Constitution,
and has written extensively on emergency power and the
president’s national security powers. So the title of this panel is,
has the Constitution failed? And if so, what are we
going to do about it? Which seems like
a very scary thing to ask and to take on as
the basis for our government in these days– has the Constitution failed? And I think we’ve got a lot
of really good experts here, and I just want to start with
a question to our panelists. Do you think the
Constitution– are we in a moment of
Constitutional failure? And if so, when did
that moment start? When do you pinpoint
that moment of failure? We’ll go through and
we’ll have each of them answer, give a few minutes, and
then we’ll go on from there. CARRIE CORDERO: Do I start? Right. So first of all, thank you. Liza, thank you. And Chris, thank you for putting
us together and for having me here. Delighted to join
this particular group to talk about these issues. So in thinking
about the question as we were framing
this conversation, I decided that I’m going to
answer the question with a no, in part because I don’t want
to answer it with a yes. In other words, I just
am not willing to say, yes, we’re in a
constitutional crisis, and yes, the
Constitution is failing, because I think that would
leave us in a really bad place. And also, I’m not
quite convinced actually that
that’s where we are. So I’m going to say, no,
but we’re not doing great, and the reasons are a few. So first of all, if we truly– there’s a few markers
that we’ve had that I think indicate that
we are not necessarily in Constitutional failure. One is that we actually did– based on facts that came out
about presidential activities– we actually saw the
Constitution working. We quickly had an impeachment– hearings, an investigation,
that took place. Even after a very
lengthy investigation that had taken place under
the special counsel’s investigation,
which did not result in articles of impeachment. So that was an
investigation, went through, and evidence was
presented to Congress, and they made the political
judgment because impeachment is a political matter,
not to move forward with articles of impeachment. But a new set of facts, the
facts surrounding the Ukraine issue, came to light– and actually fairly
quickly, I think Congress set aside much
of their regular business and moved forward
with hearings that took place very, very quickly. So just as a matter of
weeks, the House Intelligence Committee, which
took the lead on it, had depositions, closed
hearings, and then the hearings that were
in front of the public, where we had a number of current
and former government officials actually come
forward and testify. We hear a lot about
the ones who didn’t come forward and
testify, and those who said that they
would litigate or did litigate requests for
subpoenas for their appearance, but there also were sitting
government officials, including political officials who had
been nominated by the president, did ask [INAUDIBLE]
for that proceeding. So I think the fact
that we actually got to impeachment
hearings, that we actually got to a senate
impeachment trial, and that there was a vote shows
that the Constitution did work in some way as designed. Now you can look at the
facts, and you can say, I think the outcome should
have been different, which is completely fair. But also, recognize
that it really would have been a first in
history, an historical moment, and quite
extraordinary for there to be votes to actually
remove the president, since that’s never happened. So I think that’s one
evidence that we’re not in total failure. The second is that we do
have an election coming up, and I’m not of the
view that impeachment should have waited until there
was some sort of requirement that Congress do their business
in some proximity, or not close enough to the election, or
sort of factor the timing– I think that timing was a– those are political
judgments, which are fine, but there’s not anything
in the Constitution that says you can
only have impeachment hearings in the second and third
year of a presidential term. You can’t do it right when
the person’s been elected, and you can’t do the last year. There’s nothing in
there that says that. So the Congress had
the [INAUDIBLE] ability to conduct the investigation
and to hold the trial, and they did, but
now we also do have an election coming up,
which is another opportunity for the Constitution to work. And we’ll see how that
process plays out. I do think that there are
signs, though, that we’re not in a great place. Part of that has to
do with elections being a key component of the
functioning of our democracy and the functioning
of the Constitution. I’m concerned that from
a security perspective, we’re not doing
enough to protect the integrity of our elections. So that causes me some worry. I’m worried about the
hyper-partisanship and the extraordinary influence
of the two political parties, and how that
partisanship is stressing the proper functioning
of separation of powers, which I imagine we’ll
talk a little bit more about. I’m concerned about the
fact that basic facts are in dispute, that we can– from a partisan perspective,
we can’t seem to– and we saw this play out in
the impeachment hearings– that we can’t seem to
agree on some basic facts, and I think that then stresses
the ability of our institutions to work properly. And then the last thing that–
and I’ll just mention now in terms of a factor
that I think is stressing the Constitution, if
not causing it to fail– is the fact that we’re seeing
a lot of our institutions being undermined, and these
are institutions that keep the constitutional
framework working. So for example, comments that
are made about the judiciary, comments that are made
about individual judges and their perceived biases,
the inaction by Congress to assert its authority
in certain areas– and I think we’ll
talk more about that. These types of things are
undermining some of our core institutions, and if we allow
that to continue to happen, then the Constitution
will be like it is in some other
countries, where it’s like a document
and the words look good, but it’s not actually
functioning as designed. So I think I’ll
pause there in terms of why I think
we’re under stress, but I’m not willing to say that
we’re in a failure right now, and then maybe we’ll
come back in the course of the conversation
to the prospect of, what do we do about it? INTERVIEWER 1: All right, yeah. So Liza, we have one
vote for, not yet? LIZA GOITEIN: Yeah, so I’m
going to be really annoying and push back on the
premise of the question. The very term failure implies
a binary state of affairs– [INAUDIBLE] either
a succeed or fail. And realistically I think
[INAUDIBLE] on a spectrum, and that different aspects
of the Constitution may be performing very
differently on that spectrum. It’s not even that
easy to define the ends of the spectrum. What would a perfect
liberal democracy look like? I think we can all agree that
the United States has never met that standard. And then how much
would the rule of law have to disintegrate
before you decided you were at the other end? What if you have a
president who holds himself above the rule of law,
but is generally popular, and is winning fair
and free elections? I don’t think we started
at one end of the spectrum, and I certainly don’t think
we are now at the other end– we still live in a remarkably
free country in most ways. The president talks about
putting his political opponents in jail– he hasn’t done it. He says that people criticize
him, have committed treason– there are countries where
people who criticize the rulers are charged with treason. That hasn’t happened. He insults judges,
he undermines them, but he hasn’t claimed
that he has the right to ignore their rulings. He calls the journalists
the enemy of the people. The journalists continue
to freely write and publish what they will. So what we see to
date is much more an assault on norms, and some
very frightening rhetoric, than direct violations
of the rule of law. Now that’s not a
reason to relax. As many constitutional
experts have pointed out, our Constitution
is very bare bones, and we rely quite a bit
on norms to do the work that more specific
constitutional provisions do, or try to do, in
other countries. That’s both a feature
and a bug, and has allowed the Constitution–
our Constitution– to endure and adapt
to changing times, but norms are not enforceable
in a court of law. We’ve also seen, in
addition to norm breaking, policies that are nakedly racist
and radical in [INAUDIBLE].. This country will forever have
a black mark on it for the way our government is
currently treating people who seek asylum
and other means of entry into this country. That said, policies can be
cruel or ignorant or hostile to basic facts and science
without necessarily flouting the rule of law. I believe that people will die
because of Trump’s indifference to climate change, eventually. That doesn’t make
him an autocrat. So I do not mean to downplay
the threat here by any means. For one thing, there
is a school of thought and some empirical evidence
that autocratic rhetoric and norm-breaking are
precursors to actual breakdowns in the rule of law. And to be very clear– and I
should have said this earlier– this president has gone beyond
norm-breaking and rhetoric in some areas. I think he has certainly
obstructed justice by virtue of failing to comply
with congressional subpoenas, firing James Comey, intimidating
witnesses in his tweets. I think he’s probably violated
the emoluments clause, and he has of course solicited
foreign governments’ assistance in his reelection campaign,
which is against the law, and Congress should have stopped
that under our Constitution, and didn’t– I think primarily
because Congress’s institutional allegiance to
its own branch of government has been eclipsed by
partisan loyalties. And that is a huge
additional problem we have that undermines the
separation of powers that dates back long
before this president, at least back to the
times of Newt Gingrich and probably before. So here’s my bottom line– overall, I think we
are probably still much closer to the democracy
end of the spectrum than the autocracy end, but
the trajectory is alarming, because we’re moving pretty
quickly in the wrong direction, and if Congress continues to
elevate partisan loyalties over fulfilling its
constitutional role, then I’m not sure that the
other branches of government are going to be enough to– sorry, the other
democratic institutions are going to be enough
to halt the slide. I also think that we will
have a fairly definitive test, or we might have a
definitive test, coming up soon if a Democrat wins the
2020 presidential election, which is a big if. I don’t think President Trump
has any intention of conceding the race, and at that
point, the response of our democratic institutions
and the other branches of government will
tell us everything you need to know
about whether or not we’re in a moment of
constitutional failure, and that includes the
response of we the people, because the Constitution is
a piece of paper, ultimately, and if a critical mass
of the population– let’s say those
who are now seeing the possibility that they will
become a Democratic minority very soon– have lost commitment to
the principle of democracy, then no Constitution of
the world can preserve it. INTERVIEWER 1: So Chris,
that’s two not yets. You’re the one who
posed this question. How do you answer it. CHRIS EDELSON: First of
all, thanks, everyone, for being here, and
for all these comments that are incredibly
insightful already, I’ll try to keep track of them. I do think the
Constitution has failed, and as to the start date, I
think at least as of fall 2018. The reason I say that
is just because I presented a paper in fall 2018
that made these arguments. I could be wrong about these
things, obviously, too. I’ll explain the reason
why I think it failed, and why it failed at least then. I think the Ukraine scandal
emphasizes that point. One thing I want to pick
up with, by the way, though, is Carrie
and Liza both made this really important point– just because, in my view,
the Constitution has failed doesn’t mean we’re living
in an authoritarian society. Donald Trump has not succeeded. The reason I think
there is failure is because he’s made
his intention clear. Liza quite rightly said, one
cannot expect him to concede the election. I don’t mean that
in a paranoid way. I don’t mean– I don’t
know how that plays out. But the fact that– [INAUDIBLE] that–
the reality that we can see that as something we
have to contend with makes me concerned that we
may wait too long to identify this as a failure. But the point about the people
and the elections is important. When Madison said in
the Federalist Papers, the primary check on
government power is the people. We do have an election. Of course, the Ukraine
scandal involved an attack on the election,
and the president succeeded in that attack. He did it, it was found
out, he got away with it. Presumably he will
do it again– may be doing it again right now. The reason I think there’s
failure specifically– I have to explain a little
bit about some terms first. I came up with a test to
define constitutional failure based on– there’s a book called
How Democracies Die. Really upbeat title. A lot of this stuff– whenever I talk
about this stuff, people say is really depressing. It’s not meant to be. The reason, by the
way, that I emphasize failure is, as Liza and
Carrie are both suggesting, to promote the idea
of action we can take. It’s not too late. It’s certainly not
too late to act. How Democracies Die
is a book written by two political scientists who
studied authoritarian regimes– I’ll define that
term in a minute– in Europe and Latin
America, and the lesson they draw that interestingly
is that authoritarians use the same tactics
in different countries, whether you’re talking about
Orban in Hungary or Maduro in Venezuela, or
Putin in Russia– similar playbook. And they say, based
on our research, we’re sending Donald Trump
doing the same things here. Their book came out early 2018. The examples just pile
up, though– it just gets more and more evidence of that. Their book is a
warning, and I developed a test based on their wording
to say, if this is dangerous, let us figure out how we can
act before it’s too late. The central message
of their book is that authoritarians
may move gradually. When I was a kid, I read
a lot about World War II. And I was interested in, how
did Hitler come to power? And could something that
happen in the United States? By the way, I don’t
think Donald Trump is Adolf Hitler by any
means, but the concern to me is, how do you protect
liberal democracy? And people– at least
certainly for me, and I think other
people too– may have an idea in their mind of
a dramatic moment– someone seizes power through a coup,
there are tanks in the street. That sometimes happens,
but often authoritarians take power gradually. We probably hear a
lot about the frog in slowly boiling
water for example. So the point I
take from all this is, if authoritarians
can move gradually– and there may not be a dramatic
moment when everyone says, aha, now we’re on the verge,
now it’s really happening. The point to me is to act before
it’s too late, and so based on this research that
Steven Levitsky and Daniel Ziblatt in How Democracies
Die [INAUDIBLE] I’ve come up with a test,
and the test I use is, in the United
States, if you have a president with
authoritarian tendencies who has taken some action to
advance those tendencies– whether he’s succeeded yet. Because Liza and Carrie I
think quite rightly point out, he has not. But the point to me is,
whether he’s tried and has not been removed from
office, that to me shows constitutional failure. The reason I say that is
because– and I’ll explain a little more about
this in a second– by definition, an
authoritarian, or even a would-be authoritarian,
is a existential threat to liberal democracy. By liberal democracy,
I mean a system– as Liza suggested– with
free and fair elections. But whoever wins the election
can’t do whatever they want. There are limits on power– the
rule of law; individual rights; no one’s above the law;
everyone’s accountable to law, even people in office;
there are independent courts that apply the law
objectively; the law is not a partisan
tool that can be used to protect allies
and punish enemies. That’s a liberal democracy. That’s the system that the
Constitution outlines– on paper, as I think both
Liza and Carrie pointed out, it’s on paper. Madison famously says,
“parchment barriers are not enough.” You can write whatever
you want on paper. This Constitution is
not self executing. So that’s how it’s
designed to work. An authoritarian rejects
liberal democracy. They think that they should
be able to rule without limits on power, that they
can use government institutions as levers
to advance their power. Institutions are
supposed to be neutral, should be helping them, and
serving them personally. Officials and government should
be personally loyal to them. Donald Trump satisfies all
How Democracies Die as a test for identifying
would-be authoritarians. Donald Trump meets all
of the criteria– which I can talk about more in detail. I don’t want to talk
too long right now. As a candidate, he did,
and then as president, he has taken actions to
advance those goals. I think most obviously
with the Ukraine scandal, which is an assault– Carrie mentioned quite
rightly of course the concern about
security for the election. That’s an assault on
free and fair elections, a cornerstone of our
liberal democracy, and he got away with it. He wasn’t held accountable. He assaulted free
and fair elections, and then he declared his
immunity from accountability. He said, I will not
comply, I will not cooperate with the
investigation, and succeeded. One Republican senator,
to his great credit, Senator Mitt Romney said, these
are grievously wrong acts. Some other Republican
senators clearly agreed the president
had done this, but would not act either
because they thought– Senator Collins thought
he had learned a lesson. Some other senators
suggested that it’d be too dangerous
for our democracy to remove him from office. So that’s why I think
there’s been failure. This is a president with
demonstrated authoritarian tendencies, who has
not succeeded yet, but the fact that
he has tried and he has taken specific actions,
including, but not limited to, the Ukraine scandal,
to advance those goals, and has remained in office,
means that we may wake up one day and find it’s too late. And the point to me
of emphasizing failure is as a warning sign, to ring
the alarms, to say, wait, let’s act before it’s too late. To Liza and Carrie’s point– the most central way to do
that is through the election, of course. There are other things
that can be done too, that we can talk about as well. INTERVIEWER 1: So two
to one against failure now, but a lot of
concern up here, a lot of concern that
we’ve got a lot of stress on the Constitution. We’ve talked a lot about rule
of law and liberal democracies generally, but I want to push
the panelists a little bit, specifically on the US
constitution and its structure, and the text of the document,
and how it’s set up itself. For the people who voted
no, what are the specific– cite to me a specific
part of the Constitution that you feel is
at real risk here, that you wouldn’t worry
about if it went over. And then Chris, for you– not just liberal democracies
versus authoritarianisms, but what specifically
in the Constitution, in our constitutional
system, do you think has gone off the rails? CARRIE CORDERO: I’m
worried about Article 1. [CHUCKLING] I’m worried about
Congress, really. A lot of the work that
particularly many of us, I think, in the think
tank space right now, are trying to work on is to
encourage Congress to reassert its authority, and
that’s a lot where I think we’re seeing
the weaknesses of the way the current
situation has played out. So to give some
examples, Congress is supposed to be an equal
branch of government. It is not– the
members of Congress, even though they might
be politically allied, they don’t work
for the president. They are not
actually supposed to, in terms of their institutional
role and their oath, supposed to be in lockstep
in every single thing that the president
wants, even if he is of the same political party. They have responsibilities
to their constituents, and they have an oath that
they took to the Constitution in their role in a separate
branch of government. So the fact that, in the
recent investigations and the impeachment
proceedings, we saw Congress unable
to effectuate the production of documents and
the production of witnesses, it is a problem,
and it’s something that they need to rectify. The way to rectify it is,
if that requires litigating, if that requires
using other mechanisms they have available to them– whether it’s their
budget authority, their legislative authority–
to use those tools as leverage in order to obtain information
that they have demanded, they have to be willing to
use those levers of power. Because if they’re not,
those instruments atrophy, and what we saw in the recent
example of the impeachment proceedings is that Congress
requested information, they requested witnesses,
they even subpoenaed, and the information
never came out. I mean, there are relevant
witnesses and relevant facts and relevant documents to
the impeachment inquiry that never did come out. So Congress has to take a
look at using its authority and not letting those types
of subpoenas that request for information to be ignored. Another area that I think
we’re seeing weaknesses is the confirmation provisions. So there are all sorts of senior
executive branch officials that are nominated by the
president, but with the advice and consent of the Senate. So they have to go through the
Senate confirmation process, and the Senate has to vote
before they can be in office. So what we’re seeing
is this president, for a variety of
reasons, has learned– and so this was not
right at the beginning, but he has learned over
time that he prefers to have “actings,” quote unquote– “actings.” He said, “I like actings.” The reason that
he likes “actings” is, number one,
on the front end, they are not
subject to scrutiny. They don’t have to
submit the same paperwork and questionnaires
and disclosures that the Senate confirmation
process would require. They don’t have to go
and meet with senators and have private conversations
about how they would govern. They don’t have to sit in
an open hearing in front of the public and in front
of the committee, whatever the subject matter that they
are being appointed to, to be able to answer
questions about how they would run a particular agency. And so we’ve seen the
Senate not even make noise– they don’t have a lot of
ability to force a president to submit nominations– but
what they’re not doing is, they’re not even
making noise about it. And they are pushing
through other confirmations. So for example, they’re
pushing through– and this is in part because
of the political balance– but they’re able to push through
judges that the administration wants, but they’re not
getting nominations for important other, in
particular, national security positions are the one where
we’re seeing such a vacuum. So just to give you an example,
most of the Senate confirmable positions in charge of the
Department of Homeland Security are currently empty, or being
filled by acting officials. Department of Homeland Security
is the third largest government agency, with an over
$60 billion budget and over 200,000
employees and contractors. It’s a significant
government agency and has significant
responsibilities– it’s just this week we’re seeing
that they have responsibilities as it relates to the response
to the coronavirus, for example. There is no
senate-confirmed leadership in the top ranks of
that department down to the sub-agencies. What that means is that
then those individuals in those positions are simply
not as accountable to Congress because they didn’t
have the qualifications on the front end, so you
don’t get as high quality as people in these important
leadership positions, and they just don’t have
the same accountability. So I would point
to those two things as examples of where
Congress needs to step it up. [INTERPOSING VOICES] LIZA GOITEIN: I
would agree, and I think what most worries me
is a variation on Carrie’s first point, which is
that Congress has ceded to the president
many of the powers that the Constitution
gives to Congress. And the most notable
examples to me are War Powers and
emergency powers. The Constitution gives to
Congress, and only Congress, the power to declare war– and yet, since the
Korean War, presidents have routinely initiated
military conflicts overseas without getting congressional
authorization or approval. Congress pushed
back once, in 1973, when it passed the War Powers
Resolution to try to stop this from happening, but then the
executive branch creatively interpreted that
law to basically not apply to anything
the president ever did, and Congress simply
acquiesced to the point that there are multiple
Department of Justice legal opinions citing that
acquiescence as the legal basis for the president to go
ahead and essentially make war without
congressional authorization. And the courts have refused to
touch the issue because they say it’s a political question,
and the president and Congress need to work it out
between themselves. There is a reason the founders
gave this war-making power to Congress and
not the president, and it was to keep
us out of wars. They knew that presidents were
much more likely than Congress to engage in unnecessarily
military adventures– and that’s exactly
what’s happened. I mean, there’s no way to
quantify the amount of blood and treasure that has been
spilled in the last decades overseas because Congress
has ceded this authority, but it’s a lot. And then with emergency powers,
there are no explicit emergency powers in the Constitution,
but the things that look like emergency
powers, such as the power to suspend habeas corpus
during rebellion or invasion, are given to Congress,
not to the president. But again, we’ve seen
these massive delegations where Congress has said that
the president can declare a national emergency whenever. There’s no definition
of emergency, there’s no factual findings
that have to be made or criteria that have to be
met, no congressional approval, no judicial review– and at that point, the president
gains access to special powers contained in more than 100
different provisions of law, many of which are
just sweeping– powers to shut down
communications facilities, freeze Americans’ bank accounts,
suspend the prohibition on government testing of
chemical agents on unwitting human subjects– just some pretty crazy stuff. And until now,
until very recently, we haven’t seen significant
abuse of these powers because of norms, norms of restraint. But then last February,
as we all remember, the president invoked
emergency powers in order to secure
funding to build the wall along the
southern border when Congress refused
to give him the funds. And this was a situation
where there was no emergency– the illegal border crossings
were hovering near historic lows– but this was done for
the express purpose of getting around Congress,
and for wresting from Congress the power of the purse. In both cases, War
Powers and emergencies, we’ve seen some efforts by
Congress over the last year to take power back. So Congress voted twice to
end the border wall emergency. Congress also voted to stop
military activity in Yemen, and then more recently,
military activity against Iran. But in all of these cases– and this was– the
Republican-led Senate as well as the House with these votes– [INAUDIBLE] for
emergency powers, you just have 12
Republican senators cross over and vote to end
the border wall emergency. That still doesn’t get you
a veto-proof supermajority. And so what we’ve learned is
that when Congress gives away its powers, it’s very
hard to claw them back. CHRIS EDELSON: So I think that
both Liza and Carrie both get into the heart of the matter. Ironically, this seems like
a story about Donald Trump. It really is a story about
Congress, more essentially, I think. It’s a story that
begins long before Trump and will continue after him. [? Mika ?] was saying as we
were preparing for the panel– she was talking about
this famous line from Madison’s writing,
The Federalist Papers, in Federalist 51. He’s talking about
what we describe as checks and balances, and
he says, “ambition must be made to counteract ambition.” His theory was
that, if one branch of government– any branch. The framers actually thought
the legislature was the biggest threat to liberty at the time. But if any branch went too
far, the other branches would respond– not out of angelic
nature, but because they were worried their own
power would be taken away. The problem, though, is– now
as Carrie and Liza point out, Congress acquiesces. Members of Congress do not act
to jealously guard their power against presidential
encroachment– this is a story that goes back
decades, as Liza points out. They are motivated– we see
this more essentially right now by partisanship,
and really personal loyalty, in the case Republicans
in Congress to the president. Carrie made the
point about acting, on these people serving
in acting positions. That’s, of course, a way to get
around congressional oversight, as Carrie says. It’s also a way– this book I mentioned,
How Democracies Die, one of the trademark qualities,
characteristics, of a would be authoritarian or
successful authoritarian, is to install personal
loyalists in positions that are supposed to be
neutral, so you get, like, a Richard Grenell as
acting director of National Intelligence. You get family members– [INAUDIBLE] class about
the problem of nepotism in the Trump administration. Best way to get somebody
personally loyal to you is, you get a family
member– that’s a classic authoritarian
technique. So yes, that’s actually
the primary reason why I think there’s constitutional
failure is because– of course, the
framers anticipated you could get a president
who would be dangerous. They understood that– Madison
said, “men are not angels.” But the system was designed so
that, in theory, somebody went too far, they’d be reined in. To me, the central reason
why the system is failing is because Congress
is not doing its job– and that, to me, because of
these problems of partisanship and personal loyalty to
this president, which could be true for a
Democratic president as well. It’s not specific
to Donald Trump or to a future
Republican president– that to me calls into
question these points about system failure. If the system is designed
to work based on the premise that members of Congress,
as well as members of other branches, will
act to protect their power and to rein in abuses, if that’s
not happening, it’s hard for me to see how this
system functions. And related to this– Liza already pointed out. She has a great piece
on emergency power that came out just before
the emergency declaration at the border a year ago– and as she pointed out, there is
this National Emergencies Act, which is supposed to set
limits to presidential power [INAUDIBLE] War Powers
resolution because Congress has basically abdicated
its responsibilities. It tried this time,
though, but it couldn’t succeed
despite the fact that a dozen Republican
senators said, this is not a real
emergency– this is just a way for the president
to get around Congress, get access to funds that
Congress denied him. That to me also
suggests questions of– maybe I guess that’s
not necessarily a constitutional issue, but it
raises questions to me about, if you have this
framework, it depends on Congress, not just
through a majority, but a supermajority
reining in the president, whether it’s the emergency
context or a war power– and members will not
act against their party. Or even when they do,
it’s hard to get enough– you would need 20
Republican senators now to get a supermajority. That makes me wonder about
questions of system design. INTERVIEWER 1: So let’s
come back to Congress. I moderated a panel a month
ago on congressional surrender of power, so I think
there are a lot of people who are very concerned
about this problem, and I think there
are a lot of people– and certainly the
president and his allies pointed to this during
impeachment proceedings– that Congress
itself did not seek enforcement of its subpoenas
in the impeachment context. They did have one
case ongoing, which has still not yet been resolved,
in the case of Don McGahn. But I want to question
whether or not– Madison says “ambition
should counteract ambition,” but should it in
fact be the case that all branches
should maximally seek to assert their power
against the other branches? Should every document
the Congress, in that circumstance, every
document the Congress asks for, for the budget everything else– does that have to
go to a subpoena and then get litigated all the
way up to the Supreme Court? Does that undermine the
entire function of government? Carrie, when you and I were– you were the executive branch
and I the legislative branch– there were a lot of things the
Bush administration did not necessarily want to
give to Congress. We didn’t have to take you to
court to get those documents, even though it was a fairly– there were times where that was
a fairly contentious discussion about whether or not we
would get that information. How do we think about
what the role is that the executive should
be playing in its response to congressional oversight? Is this all on Congress? Like, how do you
think about where an optimal balance
on that should be, and how do we bring it back? CARRIE CORDERO: I mean
it’s a great point, that it shouldn’t have to be that way. I mean, there should be a
respect for the institutions and an understanding that the
different branches have a job to do, and they have a
constitutional role to fill, and so yeah, I’m
certainly not advocating that every single time
Congress wants something, it should have to be
going to the third branch, going to court to litigate it. Congress has legitimate
oversight activities, and usually, in
normal functioning, the executive
branch and Congress would have a back
and forth about it, and so depending on what
the information is– there’s a process, and
some administrations are better about responding
to congressional requests, or some agency leaders
make it a priority. Others are not as– don’t make it as
much of a priority, so this is something
that I think certainly ebbs and flows across
administrations, and really I would think– at least in my experience,
and probably yours too– not really a partisan issue. I mean, there are
executive branches that have been run by presidents of
both parties during the times that you or I were both
in government where we saw the executive branch
assert privileges and claim that it wouldn’t give
documents over to Congress, and generally they
work through it. And of course part
of the standard of whether or not these kinds
of requests can be litigated is usually the courts
want the executive branch and the legislative
branch to reach what they call an accommodation,
which is that they’re actually supposed to work back and forth
to try to resolve something before they ever get to court. So I do think that certainly
litigation should be left for only the issues
where there’s– of historic proportions. So it’s not altogether
surprising to me that the request for testimony
from the White House counsel– I mean, that’s an
area where one can see some legitimate
privilege issues. Although my criticism of the
way that the administration has handled the
assertion of privilege is usually when it comes to
attorney client privileges or executive privilege. Usually privileges are asserted
about a particular thing, about a particular statement,
or about a particular document, or even about a
particular topic. And so what we have seen
with this administration that is different than prior
administrations, I think, is these overly broad
assertions of blanket privilege that just applies to a
witness’ testimony altogether, or witnesses’ testimony
about anything, or a person who just happened
to be in a particular job. So that’s what I think is
different about this situation. INTERVIEWER 1: Liza,
you’ve had some experience trying to get information
out of executive branches. LIZA GOITEIN:
Yeah, and I think– I worked on the Senate
Judiciary Committee for a while. I think there is a long history
of good faith give and take between the executive branch
and Congress in terms of access to information, and courts
have tried to sit back, at least until there can be– until that process
can work itself out. That makes sense to me. If there is a good faith
claim of executive privilege, and Congress maybe recognizes
that there’s some validity, but thinks that it can override
that privilege because it has such a need for the
documents, which is a qualified privilege–
it can be overridden. You know, that’s a good faith
disagreement– they can work it out, and they can
come to some sort of political accommodation. I think the distinction I would
make is not so much between historic and non-historic, but
good faith disagreements versus something like– the president in this case did
not assert executive privilege to not participate in the
impeachment proceedings. He said this is an
invalid proceeding, and so we’re not going
to participate at all. It was not a legitimate
invocation of privilege. It was not an
invocation of privilege. Some of his assertions
of executive privilege, which have not been asserted
in the way they’re legally supposed to be, have themselves
not been good faith assertions, because they apply to people
who quite clearly are not covered by executive privilege. So I think when you have a
situation in which a president is abusing this sort of give
and take to simply resist, then in those kinds of
situations, I think– I would like to have
seen the house really– I would have liked
to see them litigate, and I understand why they
didn’t– it was not for legal reasons, but it was
for political reasons. But I would have
liked to see them not sitting on their
rights, but really following through to try
to get that information and that testimony. And then I will add
to this because we’ve been talking so
much about Congress, but I think the courts
have some blame on this as well, because I think that
they also have abdicated. Maybe not quite as
much, but on issues of the political
question doctrine, I think they’re too quick
to say this is something that they need to hash
out, and we’re not going to get involved
in cases that really are more legal disputes
than political disputes. And I think they have been
deferential to the point of abdication in some
national security areas, and so I think there’s some
blame on the [INAUDIBLE] as well. CHRIS EDELSON: Those
are all great points. I think, Liza had made a
point about good faith. Carrie is making a
similar point, too. Of course these disputes happen. Washington had
disputes with Congress about what documents
to provide for them. That happens. In a functioning system, two
other things happen, though. One is– and again, this comes
from How Democracies Die. Liza mentioned that
you have norms before. One important norm the authors
of How Democracies Die talk about is forbearance,
the idea that, [? Mika ?] said, when you’re in power,
do you use it maximally? The authors of How
Democracies Die would say no. When that happens, that’s
dangerous– they just grab– one example they give is
Chile in the early 1970s, where both sides were
using their IMUs, elected executive branch
leader, and was a socialist, and his opponents in parliament
saw him as illegitimate, and both sides used
their power to the hilt. Situation spiraled,
and [AUDIO OUT] coup, and he was killed. So the argument they make
in How Democracies Die is, just because you have a
power, as [? Mika ?] suggests, doesn’t mean you
use it to the hilt. You exercise self-restraint. Now of course, as
Liza said before, this is not to
romanticize the past. The United States has
often fallen short of the ideals of
liberal democracy. But a key moment when
this has happened– for instance, when Franklin
Roosevelt set aside the normal forbearance
and said, I’m just going to pack the courts. I can do it– it’s legal. It’s using power
maximally, but I’ll do it. He was reined in by
members of his own party. When Roosevelt ran for a
third and then a fourth term, it was legal. It wasn’t violating a norm. The Constitution was amended. So in a functioning system, I
would say two things happen. One is, there’s a give and take,
as Carrie and Liza pointed out. And people are
operating in good faith, and not making
blanket assertions. Not even, as Liza said, never
really specifically make an illegal claim. Just saying, I reject the
legitimacy of this procedure. That’s different. And then the other
thing that happens, in a functioning system–
this is part of what I argue there’s a failure– in a functioning system, when
one side is setting aside this normal forbearance, and
Donald Trump is acting, again, in a classic
authoritarian manner– I will do this. There is another book called
Unmaking A Presidency that just came out recently, by Susan
Hennessey and Benjamin Wittes, and they talk in the book
about how the president is essentially daring people– I’m going to do this,
who’s going to stop me? And that’s a classic
authoritarian tactic too. The president has said, I’m
going to assert these claims. Is anyone going to
do anything about it? And in a functioning system,
the answer would be yes, and the answer would be,
this is really important too. Members of the
president’s own party– Democrats were some of the
people who were most offended. One Democratic
member of Congress, a very close ally of
Franklin Roosevelt’s, said when he proposed the
court packing scheme, said this smells like
Machiavelli, and Machiavelli stinks. The Democrats said, this
is not going to happen. They shut it down. That’s not happening
now– we’re not seeing members of
the president’s party standing up and
saying, wait a second, this is not an ordinary
partisan disagreement. This is a president
who is doing things that are challenging the basic
assumptions of our system and making it impossible for
the government to function. Because we’re not
seeing that happening– that by itself I
would say doesn’t show failure of the system, but
it’s a dangerous warning sign. INTERVIEWER 1: A
few of you mentioned the extreme partisanship that
we’ve got going on right now. I think you all raise
an interesting point when it comes to this sort
of checking of the president, and is he being reined in
by members of his own party? The basic
constitutional structure has people elected from
particular geographic areas, and [INAUDIBLE] people would
vote their geographic interests more so than their
party interests, since those are the people
who are electing them, but we don’t see that
happening right now. We see this shift to a much
more extreme partisanship. Have you– Liza, I know
you worked in Congress. Carrie’s been observing
this for a long time, and watched at least the
Republicans make a real shift in the way they are proceeding. Where– how do you think that
that shift has taken place? What happened here? Why is it that, as
Chris says, we’re not seeing members of
the president’s party break with him over
things that seem like they would be in their
own political interests, right? Members of Congress from Texas,
not really breaking with him on, say, border wall
construction if they oppose, or members of Congress whose
re-elections are at stake not voting their past positions. What’s going on here? CARRIE CORDERO: Want
to take it, Chris? LIZA GOITEIN: I
just [INAUDIBLE].. [INTERPOSING VOICES] CHRIS EDELSON: No, no. LIZA GOITEIN: OK. Quickly, I think so much of
it is the way that elections are funded, and I think
members of Congress are ultimately
entirely beholden, more than they are beholden to
their constituents who vote, they are beholden
to their donors, and they’re beholden to
their sources of funding, and they spend all of
their time fundraising. And that is– OK, that is an
exaggeration, but it’s not much of an
exaggeration– they spend by far the majority
of their time raising money for
the next election rather than doing the job
they were elected to do. And where the money
is coming from is not necessarily their
constituents back home, right? It’s coming from
billionaire donors and PACs, and that warps, not– it warps what their
allegiances are, not just geographically,
but in every way. And so I think that that– I mean, if we’re talking
about constitutional failure, constitutional failure
comes in many– or constitutional problems
come in many shapes and forms. And sometimes you can
blame the Constitution. Sometimes you can
blame the Supreme Court for the way it’s interpreted
the Constitution. And we have case law
in this country that allows a system of campaign
finance that is absolutely poisonous to the way
democracy is supposed to work under the Constitution. And so in the name
of the Constitution, the Supreme Court has
allowed this system that very much undermines it. INTERVIEWER 1: Do you guys
you want to go ahead? CHRIS EDELSON: Oh, either way. Yeah. Liza’s very cogent
point makes me think– I forgot to mention this
incredibly radical and wildly implausible idea I
have, and I know this– I know this is
[INAUDIBLE] right now. So my conclusion is the
Constitution has failed. My second conclusion is, because
the Constitution has failed, we need a new Constitution. I know that’s not
plausible, and I wouldn’t advocate it right now. The model I look to,
though, is the failure of the Articles
of Confederation. We have the Constitution
stay because the Articles of Confederation failed. The drafters the
Constitution set aside the Articles of
Confederation, came up with an entirely new process
to draft a new document not following the procedures
under the existing document. I think that’s
what we need to do. Now the fact that we need
that doesn’t have anything to do with whether
it’s possible. I don’t think it is possible. One of the things
I would do, partly because of what Liza says– I don’t think this
is necessarily a reasonable interpretation
of the Constitution. We have this case law
from the Supreme Court on things like
campaign finance that is, how do you get that change? You could, maybe, through the
current process– you could, if you were drafting
a new Constitution, you could address it there too. As well as other problems. If you were starting
today, I don’t think you’d devise a
Constitution that we have that was drafted in 1787. That’s, again, not
plausible, but that’s to me the logic of what it means
for the Constitution to fail. So the problems of extreme
partisanship, yes, of course– the way the campaign funding
system has a lot to do with it. Another issue too,
I think, is the way the parties have changed. Until the mid-1960s,
there was a lot of overlap between the parties. There were liberal Republicans
or conservative Democrats. The Democratic Party included
a segregationist element, the Southern Democrats. That’s all changed–
voters sorted themselves out ideologically, and
the Republican Party is now largely homogeneous
racially, religiously. As Liza said, a
demographic that also feels itself under threat– a white majority becoming
a minority at some point, whereas the Democratic
Party is different. It’s a more racially
diverse party. Evangelical Christians used to
be in both parties– they’re now in the Republican party. I think that changes the
way things were to– again, in the context of a system
that I think is flawed, a system where you can
draw district lines, so you can appeal to– you know you’re going
to win re-election; or steep representation
in the Senate, which means you can have a
majority in the Senate without having majority
support in the country, or the electoral
college as well. So I these are all
structural problems too. Some of them could be
addressed without replacing the Constitution, but
for various reasons, I think that would be the
most logical way to do it. The fact it’s logical doesn’t
mean it’s possible– it’s not, but I do think it’s
worth thinking about. CARRIE CORDERO: Let
me just add that– I think, [? Mika, ?]
your question– it raises an issue that
for me as a person who focuses on national security
law, national security policy issues, has been one of the
most surprising, perhaps, observations about what has
happened to members of Congress really, during this
administration, which is that there are
political alignments of how our Republican members of
Congress, who are politically now in the same party which the
president is the leader of– it actually has had
a substantial effect for a good number of them
on their outlook on policy. So particularly in the national
security space, where at least in the 20 plus
years that I’ve been working on these
issues in government, and then out of
government, where Republicans traditionally– most of them were fairly well
aligned on national security issues– the importance of strong
surveillance authorities, for example; viewing Russia
as a strategic threat; in addition to a whole
variety of economic policies– These are issues where
Republican members of Congress have done a complete 180. Now there are certain members
who have been always affiliated with the libertarian wing of
the Republican Party, that have always been skeptical
of some of those stronger national security
hawks, I guess, is the best way to put it in
terms of how we describe it. But there have been real
tangible changes to how these members are conducting
their work in Congress, and so they’re– the transition, the
transformation, I think is the right word, has
been very quick and very stark. So for example, we
look at some of the way that Republican
members of Congress are talking about the
Department of Justice, are talking about the FBI, are
talking about the intelligence community in derogatory ways
and buying into this deep state narrative and corruption
narrative, which certainly doesn’t match my experience
in the Justice Department or the intelligence community. These are areas that
we’re seeing them really change their views. Now why they’re doing that,
clearly perhaps some of them have actually intellectually
done gymnastics to get there, but really, a lot of
it has to do with, they’re looking at
their next election and they’ve made a
political judgment that, in order to
get reelected, they have to be aligned
with the president on a number of these policy
issues and public messaging issues. So I tend to be– although it’s not an
area of my scholarship– I tend to be generally
a fan of term limits. I wish it was something
that we would take on, as a resident of Virginia. Our governor has term limits– they sort of get in and do
their thing, and get out, and I think it works all right. So I think there are
disincentives to members constantly on this
re-election cycle and also not having
any other career path. So we have certain
members of Congress who then, this is their career. It is being a
member of Congress, and I sometimes get
the feeling that they don’t want to move on
because they really don’t know what else they
would do, professionally. CHRIS EDELSON: Interesting. INTERVIEWER 1: Well,
that’s actually– the term limits things
is a hopeful note, and while the audience thinks
about questions they might like to ask the panel,
I’ll just ask– we’ve identified
a number of places where there is stress
on the Constitution. What are some
solutions that you guys are thinking about
that might help strengthen the
Constitution, strengthen that basic form of government? Carrie mentioned
term limits as one. Do other folks have
other suggestions for things that Congress– that we could do to help
buttress the Constitutional system? LIZA GOITEIN: So
like Chris, I have thoughts and ideas that I think
are logical but not plausible, or things that you risk
doing more harm than good. There are– I don’t think I
would want a new Constitution. I think there’s a lot of great
things about our Constitution. CHRIS EDELSON: Oh yes. By the way, I don’t
mean [INAUDIBLE].. I agree, right. it would
There are certainly a few changes that I would
like to see, some of which could be done by
statute, but some would require constitutional
amendments potentially. I mean, I don’t see the
Supreme Court reversing itself on [INAUDIBLE]. But again, I’m not
sure I would actually want to see that happen
right now, because I just think if you started a
Constitutional convention, I’m probably not going to
like what comes out of it. So I would say that some of– there is an impetus to
move toward codifying some norms, which is
something that the task force at the Brennan
Center supports, that is co-led by [INAUDIBLE],,
that issued a report suggesting certain norms that could
be codified in terms of, among other things,
the independence of law enforcement for example. That wouldn’t
necessarily require a constitutional amendment. The other thing– the
place where I put my hope– is that the sort of
shock and awe of some of the things that
this president is doing or threatening to do with
his powers is enough to, I think, jar members of Congress
out of their complacency, and we haven’t yet reached
the magic threshold of a veto-proof majority, but
I think they could get there. I think if President Trump
uses emergency powers to order US companies out
of China, I think we’re going to see Congress
decide that maybe that’s not something the president can do. And on emergency
powers reform, we are seeing what to me is the
most bipartisan effort I’ve ever seen in the
national security space and the civil
liberties space on anything in terms of
reforming the National Emergencies Act, where there is
a bill in the Senate right now that has 19 Republican
co-sponsors. You can get one more co-sponsor,
and all the Democrats to vote for it, you have
a veto-proof majority. So I think that some of
the extreme behaviors of this president, while
they are the problem, might actually help to
prompt the solution. INTERVIEWER 1: I would
just note, you know, we’re talking a little
bit about acting officials and the president’s
overuse of them– I saw on Twitter earlier today– Congressman Kelly from Illinois
has a piece of legislation that she would propose. If you are in an
acting position, you have to testify before
Congress every 45 days unless you are a
confirmed person, to create the disincentive of
having to show up and testify as a way of trying
to discourage people from over-reliance on
that, which I thought was interesting. CHRIS EDELSON: Yes. Yes, all right. So to be more practical,
which is important because implausible solutions
aren’t going to matter. I think there’s two
issues, and one of them goes to exactly what
Liza was talking about– I think there’s two questions. If this is right, that this
is a red alert situation, Constitution has failed– the immediate issue is
staunching the blood flow, just responding to
the immediate crisis. There’s somebody who’s
an authoritarian threat. How do you rein them in? The impeachment
process exists, but I think it’s essentially a
dead letter– it didn’t work in this context, and
that’s one of the things I think is an indication
of constitutional failure. I don’t think impeachment
is meaningful as a check. But elections exist because
as I said, Madison said, people are the primary
check on government power. There is an election,
so people will decide. If authoritarians are popular,
then they win no matter what. You can’t create any system
that would guarantee liberal democracy that’s– what’s that? Yeah– INTERVIEWER 1: I said
[INAUDIBLE] out loud. CHRIS EDELSON: Liza’s right,
and Liza mentioned this before, remember, when we were
preparing for the event. She said there’s nothing
you can do in any system to guarantee the [INAUDIBLE]. Of course that’s correct,
but people have a chance to weigh in, so we’ll see– that’s the first question. Do you respond to
the immediate threat? The second question,
setting apart the election, and setting apart Liza’s
really important point– I’m interested to hear
more from her about what happens if the president
loses and he doesn’t concede? Which I expect him– I’m very curious to hear
more about that, because I think that’s a real problem. But setting that aside. [AUDIO OUT] whatever
it is, You’re still left with the problem,
even if this president doesn’t succeed, a
future president could. A lot of scholars
talk about a Trump 2.0 who could come from either
[AUDIO OUT] exclusive province. There are left wing
authoritarians– Maduro or Chavez, Venezuela? INTERVIEWER 1: Castro. CHRIS EDELSON: Of course– yes, sorry. Of course, Castro has
been in the news recently. And there are right
wing authoritarians– Putin, Erdogan, Orban, Duterte. So it can come from either side. So how do you
strengthen the system to try to respond to that? The most logical ways,
as Liza points out– there are norms. Norms can be made into laws
when they are violated. When Roosevelt ran
for re-election the third and fourth time,
the Constitution was amended. Sometimes you need to amend
the Constitution, which is very difficult. Sometimes you can make
statutory changes. I’ve seen [INAUDIBLE]
task force, the recommendations about
changing some norms into laws. Some of the things they talk
about, if I remember correctly, are about protecting– Liza mentioned in the
beginning, the problem of facts, of just getting people to
agree to empirical evidence and objective reality,
and some of the reforms are aimed at that. Some other things, and I think– I’m interested to hear
from Carrie about this, because she has
direct experience in the Department of Justice– I do not. So if they did– the Department
of Justice is independent, that decisions are made about
law enforcement without regard to partisanship– law enforcement is
not simply a tool to protect allies
of the president and punish opponents, which
is how it looks right now. That’s a norm we’ve had for a
long time, going back decades, actually, the Department
of Justice is independent. It’s largely a norm. The president can subvert that. Should that norm be made
into a rule in some way? Should people talk– there
have been some proposals for the Department of
Justice to be made formally independent of the president. I don’t know personally whether
that’s a good idea or not. I’m interested what
Carrie thinks about that. CARRIE CORDERO: So one
of the things that has– how do I want to describe this? In reaction to what we’re
seeing from the president and from the administration, we
start to see counter proposals. So in other words, he’s
pressuring the Department of Justice inappropriately,
has the desire to cause investigations to be
opened to political opponents, has a running commentary
on ongoing criminal cases and investigations, makes
comments about defendants and what their sentences should
be– does all of these things, and so then the
counter-proposals Chris describe is, maybe we should
have an independent Justice Department. Another example is, he removes
the acting director of National Intelligence, replaces him with
an active political loyalist, and so one of the
proposals I see somebody tweet out or mentioned
is, OK, let’s get rid of the Director of National
Intelligence– let’s get rid of the office of
the Director of National Intelligence. INTERVIEWER 1: Some of
us thought it [INAUDIBLE] created in the first place. CARRIE CORDERO: There– true. It’s a legitimate
policy [? discussion. ?] But another example. We see obviously the
leadership vacuum at the Department of
Homeland Security. We’ve seen a lot of policies–
and I’ve written extensively about family separation,
a lot of policies that are contrary to law,
contrary to our values, a lot of problems in the agency. So let’s take apart
the entire Department of Homeland Security. So I want to push back on all of
these because, as somebody who spent most of the last 20
years working on the policies and helping to build the
institutions in the entire post-9/11 framework, I really
don’t want to see the entire thing undone because of one
person who doesn’t understand how government is
supposed to work, doesn’t respect the reasons
that legislation was passed by Congress to create all
of these institutions. Doesn’t mean that they
are perfect, doesn’t mean that it’s not time– 18, 19 years later– for the
Department of Homeland Security to be modernized, doesn’t
mean that we shouldn’t take another look
at DNI authorities and potentially
strengthen them, doesn’t mean that we shouldn’t keep
modernizing these institutions and keep refining them and
keep making them better. But what I don’t think we should
do is help him tear them down, and that’s some of the
reaction that I’m seeing is, well, we don’t like the
way that he’s running it, so let’s just get rid of it. I don’t like that, because I
think that that will take us to the opposite place. What the president has
been successful in doing is lessening the
impact of bureaucracy, concentrating power in a
cadre of family and loyalists, concentrating power
in the White House. What we want to do,
from my perspective, is counter-balance
that by strengthening the other institutions, not
by helping him dismantle them and making them irrelevant. So that’s my reaction to that. It’s about the Justice
Department and the proposal to make it independent,
which, from a constitutional perspective, I think that the
attorney general is exercising authorities that are the
president’s, so I don’t think it works constitutionally. But from a reaction to Trumpism,
I think it’s about much more than the
Justice Department, and it’s about maintaining
our institutions and not accidentally
falling into what I think he actually is trying
to do, which is dismantle them. INTERVIEWER 1: With that,
let’s turn to some audience questions. INTERVIEWER 2: Just
a note before we get into the Q&A portion. We are live streaming, and
quite a few people are watching, so as you have a question, make
sure to stand up, speak slowly, speak loudly, because
it is live captioned, so we want to make sure
that the captioner is hearing your question
and getting that through to that audience. And then also panelists,
if you could help us out by repeating the
question, that’d be [INAUDIBLE] appreciated. INTERVIEWER 1: OK, great. So we’ll repeat the question
back, and let’s start here. AUDIENCE: I think there’s
two structural elements in the Constitution that
are– it’s almost frustrating to think of them because there’s
nothing we can do about it, but I think there are two
elements in the Constitution that are structurally– might suggest that our 240-plus
year old Constitution has failed, and that is
two senators per state, where you have Wyoming
and Vermont, for example, with fewer people each than
the District of Columbia; and the way that our
Constitution is amended, which to remind people,
is 2/3 of the House, 2/3 of the Senate, and
3/4 of the states– thus no amendments. It’s frustrating almost
to put that out there because there’s nothing can
be done about either of them, but I think if we
have a Senate that was more representative
by population than it is as it
is, I think we might be in a different situation. Nothing can be done,
so I don’t even know if there’s any comment
you could have on it, other than if we’re just
asking the question, has the Constitution failed? Sadly I think these two
elements are serious flaws now. INTERVIEWER 1: So as someone
who’s spent most of my career on the Hill, I agree with
you that right now it feels like the way
the state borders work relative to population
feels like we’re getting outcomes that are not
particularly democratically oriented, small d, right? The populace– a very small
percentage of the populace– can actually determine
national outcomes. But there are things that can
be done about that, right? It doesn’t actually take that
many people moving to Wyoming to change it, right? Alaska actually is a state
that, as it becomes increasingly urban and most of the
population’s in Anchorage, you see the politics
of the state of Alaska changing where Lisa Murkowski
was able to run as a write-in, and there are a lot of
independents in Alaska. So the partisanship is changing. We don’t necessarily need
to view the demographics as immutable, but we
might want to think about what it means that
we have so much population concentrated in so many
areas at the moment. I encourage all my friends
to move to purple states. I live in the
District of Columbia, so I’m un-represented,
but I often think about moving
to Virginia just so that I have representation. But I do think it’s a real big
concern for people, especially when it comes to not– just we’re talking
about with the Senate, but with the electoral college. And the way the
electoral college vote outcomes because of that
same population distribution result in, and have resulted
in for quite some time now, a president who is elected with
not a majority of the people voting and supporting
them– in fact losing by a significant
portion of the populace. We’re winning with this while
still losing the popular vote. I think there are a lot of
people who really question whether or not structurally
the electoral college, which is in the Constitution, is
something that needs to go. AUDIENCE: However, I assume
this is legal– in Virginia, I thought they’re proposing it– that for a state to say that we
will have all of our electors go [INAUDIBLE]. So that’s something, without
changing the Constitution, the two elements
I’ve mentioned would require changing the
Constitution, which– CHRIS EDELSON: Is possible. Sorry, can I respond to this? Just because I’m really
excited about the question. That’s the stuff–
I mean, you’re right– it feels hard to say
this is not going to happen, and that’s important to say
when people are talking about, let’s change the
electoral college, let’s change the
makeup of the Senate. It’s not happening right now–
we have the system we have. So your point was– in fact, the one provision in
the Constitution that cannot even be amended, even pursuant
to the very onerous process in Article V, is
senate suffrage. Each state has to
actually agree. Even if you meet that 2/3, 3/4
threshold, it doesn’t matter. That’s the one provision
that cannot be amended, even under the article
[INAUDIBLE] so you’re right. That’s why– and so to take
my implausible point, that’s why I say this is not a system
one would begin with today. And so I think it’s
an important point. It has to be put to the
side because, as you say, it’s not plausible. But as [? Mika ?]
points out, there are things to be done
within the system. There’s the national
popular vote effort. I’m not sure it would be
challenged in court, surely– I mean, there are state
legislatures that are voting, as you’re saying, and
they’ve reached pretty close to enough states to do it. Basically what the state
legislatures are saying is we will sign our
electoral college votes to the popular vote winner. And if enough states did that,
then the electoral college would become a popular vote. So it’s not going to
happen for this election– it may never happen,
and if it did, it could be
challenged in court– but it’s an example of
something that could be done. As [? Mika ?] also said, of
course, things can change too. I mean, that’s
something– we have to face the reality
of the current system. Sorry– [INTERPOSING VOICES] INTERVIEWER 1: We have
some additional points. CHRIS EDELSON: Oh, yeah. INTERVIEWER 1: Is it– we had a question for here. AUDIENCE: A student
has a question. [INAUDIBLE] AUDIENCE: Hi. Should I stand up? OK. So I was just
wondering– so you talked about how the way to fix the
constitutional problems up to the people in that we
have to make the choice to elect someone
that isn’t going towards these
authoritarian ideals. However, how are
we supposed to do that if there is foreign
influence on our elections as well as other data analytics
that are getting in the way? INTERVIEWER 1: This is actually
one of the provisions I was hoping someone would raise in
the Constitution that might have failed– the foreign
emoluments clause– that I [INAUDIBLE] address that. CARRIE CORDERO: Sure. I actually understand
politically why they didn’t, but I really
wish that the impeachment proceedings would have
included a lot more than just the Ukraine issue. I think the emoluments should
have been in, and I certainly think that the five to 10
incidents of obstruction outlined in the Muller Report
should have been in it, but they didn’t. Thank you for the foreign
influence question. So a lot of what we’re
hearing about right now in terms of the election
focuses on election security. What I would suggest
here is that we have a bigger issue, which is
election integrity, and there– I view them as two
different things. So election security,
the way I’m generally thinking about
that right now, is how the mechanics of the
election voting system are working– whether or not we
have paper ballots, making sure that voter registration systems
have adequate cyber security. So that’s where a lot of
the conversation since 2016 has focused. Election integrity
is something bigger– election integrity
includes our confidence in the outcome of elections;
and our confidence in whether or not they are
being administered fairly; and whether, when an app
makes a mistake in a caucus, that we are able
to understand this was just a technical
glitch– this isn’t a foreign
country conducting some kind of malign
activity against us and attacking our
democratic institutions. And I think right now,
we’re in a really bad place, because we really don’t know. When I say we, I mean
the public– just doesn’t have good
information to operate on. So there’s a number
of things that I think we should be doing better. One is, there’s all sorts
of election security bills that are pending in Congress
that the Senate won’t act on, and they really
need to act on them. Two, we need to be– I think that the intelligence
community should be more transparent about what the
threats are [AUDIO OUT] so you might some of you might
be following last week– there were reports
about briefings that the Intelligence Committee
gave to the House Intelligence Committee. And then it was a
classified briefing, and so then they were reporting
after the briefing about maybe what was said, and
maybe what wasn’t said, but as a member of the
public, we really don’t know. We don’t know what was said,
we don’t know whether or not the briefer actually said that
Russia prefers Trump, or is actively helping Trump,
or what the situation was. In 2016– and this is well
documented in the volumes that have been produced by the
Senate Intelligence Committee investigation– in 2016,
the administration, the Obama administration
at the time, made a judgment to not release
too much information about what was being seen by
the intelligence community about what
the Russians were doing. That was a judgment call. They made the judgment call
based on a variety of factors, including the fact
that they worried about releasing the information,
that that would undermine confidence in the election. So they erred on the side
of waiting and releasing information only a month
before the election, and they erred on the side of
less information versus more. My view is that that
didn’t work out so well, and that in 2020,
the government should be much more forthcoming with,
what is the threat picture? So whether or not that means
regular public briefings that are done in the format of
a congressional hearing, whether that means
periodic releases that are the consensus of the
intelligence community that are made public,
this goes beyond normally what the intelligence
community would do, but I think that it’s
really hard for the public to have confidence
in what’s going on if they don’t have
more information, and the last thing– sorry, I’m taking a lot of time,
but I’m worked up about this. Another thing is I think
there are responsibilities on the candidates. So one of the things
that was concerning to me after Iowa was candidates
immediately questioning the outcome, throwing shade
at what the reporting was, of what the vote tallies were– I think candidates really need
to be responsible about what they are saying about the
integrity of vote counting and elections, and
they need to understand that it’s not just politics. Like– going out and
saying, well, I won. Yeah, maybe that
would give someone a political bump in the
news media the next day, but they’re contributing
to an environment where we already have a low
public [AUDIO OUT] election. I think it’s incumbent
upon candidates to be responsible about it. INTERVIEWER 1: We have
a student question. AUDIENCE: I’m quite interested
in the European populist wave that’s happening
right now, and being that we’re in the
digital age, I guess my question is,
how big do you feel the influence of
global populism, with groups like the [INAUDIBLE]
talking to and referencing to Donald Trump and autocratic
behavior in the United States, how that either legitimized
our own democratic decline or Europe’s democratic decline. LIZA GOITEIN: I think
that’s a great question, and it ties to this
larger question of, are we in a moment of
constitutional failure versus are we in a moment of a
president who is just kind of off the charts in
doing things that we wish people weren’t doing? And that what we
are dealing with– and when all this
started, right? What we are dealing
with is not one person who is just temperamentally
not going to adhere to norms, or wants more power than he has. This is not a problem
with one person. This is a much more
deep rooted problem that ties, not only to– that may be enabled in
some ways by some laws in our Constitution, or some
ways in which our constitution has not been working as well
as it should, but also ties to pressures and
stresses and factors that are global, and not
just unique to this president or this country. And that includes the
demographic shifts that we’ve talked about– that includes income
inequality, that includes the effect
of climate change that is destabilizing all
kinds of geopolitical measures around the globe. And so yes, it is all connected,
and it is a much larger problem than make sure you
don’t vote for somebody who wants to be an autocrat
in the next election. On the other hand, make sure
you don’t vote for somebody who wants to be an autocrat
in the next election is probably a really good place
to start trying to pull things back the other way. INTERVIEWER 1: We have some
more questions towards the back. AUDIENCE: Hi there. When I think of broken
things in our democracy, I often go straight towards
Mitch McConnell and Senate majority leaders. I believe Article 1 Section
5 says each house can govern its own proceedings. Do you think it’s important that
the Constitution be amended, or if you were to start
a brand new Constitution, that proceedings in
chambers be enshrined more into the Constitution
so that the Senate has to vote on bills? Even if they don’t pass
they have to vote on it, and they just
can’t sit on bills? INTERVIEWER 1: So I want to
take two questions at a time, since we have some other
students who are [INAUDIBLE].. AUDIENCE: So I want to– my name is Connor Clark. I’m in the Maryland version
of SPA, so [INAUDIBLE] here. I guess my– I’m going to keep it
as short as I can, but a comment leading
into question. The press is the only private
institution, to my knowledge, mentioned and clarified
in the Constitution, albeit the First Amendment,
and we have come into a culture where we– most of us can
recognize that even speech we seriously disagree
with is protected, and that not all speech
is, so there is that– you can’t shout fire
in a crowded theater. And democracy, I think the point
that hasn’t been touched on yet is the lack of basic facts. I really think we
need to address that, because in a world
where a lot of people voted for Trump
because they believe Hillary Clinton literally
murders her enemies, although you would think that– condemning this,
if it were true, that Obama and
Sanders and Trump, the three people who
thwarted her most, [INAUDIBLE] on that
list sometimes– again, no [INAUDIBLE],, no
threats, Secret Service, if you’re watching this. But we need this
sort of mass literacy to make mass decisions on
facts that affect us all, and at what point do we
decide in now a digital era, just as mass literacy
and mass democracy might have seemed kind of
ludicrous for the printing press– in my own defense, [INAUDIBLE]. What point in the
digital era do we think of lying and putting
out Seth Rich-style conspiracy theories as shouting fire
in a crowded theater? How would we address
that without necessarily amending the Constitution,
which probably– INTERVIEWER 1: So we’ve
got two different questions on the table. One is, what do
we do structurally about the Senate and the
dysfunction in the Senate? And the other is, how do
we deal with the fracturing of a common understanding
of what’s going on? AUDIENCE: In the digital
era, in shouting fire in a crowded theater? CHRIS EDELSON: I would prefer– [INTERPOSING VOICES] LIZA GOITEIN: Yeah. I want to address the
question, at what point do we treat lying as shouting
fire in a crowded area. I’m wary of any
solution that involves the regulation of speech, and
one of the reasons for that is, I ask you, who
decides who’s lying? If you’re talking about
regulation of speech, you’re talking about– well, you may be talking about
government regulation, in which case it’s Mitch McConnell
and others who I would not necessarily trust with that
decision, or the president, or you are talking about– potentially you’re talking
about Mark Zuckerberg. I frankly don’t see that as
playing out so well either, in terms of entrusting him
to decide who is lying, who is not lying. Lying is not new. I mean, I am not naive– I know that the internet has
changed the speed and the scope of the diffusion of information,
but there have always been lies and attempts to
deceive, and attempts to manipulate the
outcomes of elections by saying things are misleading. And what we have
seen in the past is that efforts to regulate
speech for the purpose of– even if they’re driven,
at least nominally, by the purpose of protection of
certain vulnerable communities, end up being used at the
expense of those communities, and to restrict the speech of
those very communities, who are supposedly protected
by speech regulations. So again– well, not again,
I haven’t said this yet. I’m not an absolutist. I don’t think you should
be able to yell fire in a crowded theater. I don’t think you should
be able to tweet out under an inauthentic account
that looks like the state electoral board count false
information about when and where an election
is going to happen. I think that goes beyond
constitutionally protected speech. But to me, that bar would
have to be very, very high, and I get nervous when
I hear people talking about how the platforms
should clamp down on the spread of disinformation. INTERVIEWER 1: Actually, I
think [INAUDIBLE] a little bit. I think that there are countries
that have stronger libel laws than the US
does where it’s like, if you accuse someone of,
say, murder, that that could be a [INAUDIBLE] action. Someone could sue you for
slandering their character, and we’d all– we have a lot of
latitude on that, and maybe we should
rethink that balance. And the other thing is– when
we’re dealing with this today, where the president– President Obama has asked the
state of South Carolina– a TV station in South Carolina– to
please stop airing an ad that is misleading, that
uses his voice in a way to suggest something about
a candidate that’s not true. Under the First Amendment, you
can regulate a time, place, and manner. The Federal Communications
Commission regulates airwaves. Spectrum is not– if you’re
broadcasting where Spectrum is not free, there are things
that the government could do to regulate over-the-air
television advertisement that is different than the
platforms, and certainly there are places that
we could do that. That’s a different question
than the platforms, and I think there is a
robust debate happening right now over the platform Section
230 liability for speech that is published on their
platforms, and I don’t know that we have
the right answer to that. But I want to go back
to the Senate question because I think both Liza and
I have been very frustrated as previous Senate staffers
with what is happening there, and I think that the real
challenge on that is that– we’ve talked about taking
out the filibuster, right? So that you have this ability
to move things to the floor, so at least it gets
an up or down vote, and I think there are
a lot of places where yes, the filibuster
has prevented really good pieces
of legislation or not– we need
to move it forward, but it has also acted as
a shield to moving forward some things that
would be terrible. So you can envision a situation
where this administration would try to move forward, say, the
denaturalization of people who were citizens, and that actually
getting to a majority support. So I think we’re– and you wouldn’t
want that to happen, and even if a minority
senator stood up, you might want to be
like, that’s something that we want to do. I think it is a little bit
of a challenge, though, because people feel like
we are not moving forward. And I think there
are a lot people who have some regrets about doing
away with the filibuster, when you look at the way the
federal judiciary is going. LIZA GOITEIN: Absolutely. INTERVIEWER 1: We
have another question. We have four more questions. If we just take
all four and then– CHRIS EDELSON: Sure. INTERVIEWER 1: I’m going
to start at the back, and then move our way forward
in terms of questions, and then we’ll do our
curious where you think the restructuring
should start, because a lot of
these candidates have these platforms where they
say they can do all of this, and then do you think that
when people get elected, they just focus on the
next campaign instead of saying I can do all this? And I know you said that
the Constitution has failed. [INAUDIBLE] address it. Even when people
get into positions, they just focus on fundraising
for their next election, therefore they forget how to
even start with the promises that they made? INTERVIEWER 1: That’s
a lot of questions. Here’s another question–
[INAUDIBLE] woman. Yes. AUDIENCE: Yeah. AUDIENCE: OK. One of the things
that really concerns me is this campaign of
terror and intimidation against immigrant communities,
and it has been escalating– at first, it was people
who didn’t have documents, and then it was about attacks
on people’s green cards, and now they’ve created a
group within the Department of Justice dedicated only to
revoking people’s citizenship, and according to Dan
Moynihan, they’re talking about revoking the
citizenship of 700,000 people. And that includes
people close to me. And this is
simultaneously the census. You think people are going to be
filling out the census on this? And this is also clearly
geared towards the election. So what we’re
actually seeing, which may be invisible to many
people at the University in certain circles, is quite
how authoritarian this regime has already become to
the most vulnerable. INTERVIEWER 1: We have some
more questions up here. AUDIENCE: So I was wondering
if you guys could maybe address some of these solutions
to hyper-partisanship, because one of the solutions
that the panel addressed to solving the current
political situation is the complication
of certain norms, but how do we rein
in a president when we have a Congress that
won’t part from party lines? I was just wondering if you
would speak more towards that. AUDIENCE: And then
my question is, you mentioned the
dangers of a Trump 2.0. Do you see any elements of
these non-democratic tendencies within the Democratic Party
right now in the next election? INTERVIEWER 1: So just to
review the bidding, for those watching on the livestream. Where should the
restructuring start? Do politicians think a
re-election is their priority and forget their promises? How do we deal with
the creation of fear in immigrant communities
with talk about green cards and denaturalization? What does that mean
for the census? Which is, again, in
the Constitution. Solutions to hyper-partisanship
and Trump 2.0, and I will ask my panel
to do a lightning round, and don’t feel like everyone
has to answer each, but let’s try and get everyone
at least one or two. INTERVIEWER 2: OK. So I think I’ll take on
the immigration question, because I’ve been focusing
some of my research this year on the department of
Homeland Security. So I think the first point is,
I’m going to do this quick. First point is, this is
Candidate Trump’s platform. I mean, you have
to recognize that– and I assume that you do, but
for everyone’s information– this is a signature campaign
issue, is anti-immigrant, and this is just based on their
polling and their research that they did, and
what they determined was a winning– turned out to
be a winning issue in the 2016 election. And then I think what we
have seen happen plays into the rule of law
issues that we’re seeing, which is that they
took a campaign issue and then started to implement
it once in government. And the way that they have done
that gets to all the things that we’ve talked about today,
because the way that they’ve done it is by trying to bypass
the lawful implementation of policies and instead
implement policies that were political objectives but they
didn’t stop to determine– so for example, we look at
the initial travel ban, we look at the issue
of family separation, which I’ve written on the
two academic colleagues. Those types of things, they
implemented them in a way where they issued the new
way that it was going to be, did not do sufficient
legal review, and at the Department
of Homeland Security, where we’re seeing a lot of
these issues be effectuated, they’ve done it by– actually, the president fired
the Senate-confirmed general counsel. Now this is something–
for those of us who’ve been in government, this
doesn’t happen– you don’t have somebody who’s
nominated by the president, confirmed by the
Senate, and then fired– not for cause, not for not
doing an appropriate job, but simply because that person
was most likely standing in the way that they wanted to
implement things that were not consistent with the law. So that’s how they’ve
been able to effectuate it is by pressing
on weak leadership and by taking out individuals
and political appointments who are willing to push back
on these types of policies. LIZA GOITEIN: I’m going to
take on two of the questions at once– the question about once
candidates get elected, what happens to all
of their promises? And then also the
potential for a Trump 2.0. It’s interesting
to me that when we listen to the
Democratic debates, the candidates are
focused on not being Trump in all kinds of ways,
and largely in policies– how they’re going
to reverse policies, do everything differently when
it comes to immigration, when it comes to health care, when
it comes to climate change, and all that. I’ve heard very little
about what measures they are going to promote to
safeguard the rule of law and our constitutional
democracy against the kinds– the assault that this
president represents, and what kind of structural
changes they think are needed– very
little about that. It’s been focused
on specific policies and not so much on– something
went very wrong here. How are we going to keep
it from going wrong again in the future. And in fact, to the contrary,
every once in a while I hear candidates
saying things that make me very nervous
about what they might try to do in presidential power. I’m not a fan of the idea of
declaring a national emergency to deal with climate change
because climate change is a problem that has been
around for a very long time, and Congress has chosen not
to do anything about it. That is the wrong choice,
but using emergency powers to deal with that
situation is a way of getting around
Congress, once again, on a matter of policy that
really is Congress’s job to deal with. So I’m not trying to draw any
kind of false equivalence here, but I’m worried that I’m
not hearing more about how some of the
systemic problems that led to where
we are now, and how we’re going to stop those
from happening in the future. CHRIS EDELSON: Very quickly– as Liza was saying, it
is important to say, on the Trump 2.0 question– I don’t see an equivalent
figure on the Democratic side. It doesn’t mean one
couldn’t emerge– however, I do think it’s important for
Democratic candidates to make clear– if they support the rule of
democracy– to reject what’s going on. And there have been
some things I’ve heard, that the emergency declaration. I can’t remember which
candidate it was that said this, but one of them I think did talk
about declaring an emergency for climate change, right? LIZA GOITEIN: More than one. CHRIS EDELSON: More than one. So that really
concerned me, the fact that you have some
candidates who are not disclosing medical
records, financial records. They’re not legally required
to do so, but it’s a norm, and it’s an important norm. It’s a norm that helps us
support the rule of democracy. It’s a norm that’s
been violated I think to the detriment
of local democracy. Those things worry me. To Liza’s point, not
equivalent, but concerns me. On the hyper-partisanship
point, I don’t see a solution. Again, that’s why fundamentally
I conclude there’s a failure. If the system depends on
ambition counteracting ambition, you have [INAUDIBLE]
this asymmetric partisanship, I don’t really see
how the system works. That’s not to say one should
give up, by any means, but it’s a really
important problem. And then the last point– I heard the question at
the beginning about people get in office and then they just
not care about these things. I think people here know
more about this than me, just picking up what they’ve said. Because so much of
your time has to be committed to this kind
of constant election– we’re always in an election
cycle, and raising money, people can’t really
focus on these. On the very last point
about immigration– Carrie talked about
this too, but I just want to emphasize– that’s an
authoritarian warning sign. This is a trademark
tactic for authoritarians. We’ve seen this before– when would-be
authoritarians speak, sometimes the words are
dismissed as rhetoric. It’s not– How Democracies
Die, they point out, rhetoric often becomes action. Donald Trump has talked about
changing rules for citizenship, ending 14th Amendment
birthright citizenship. That can translate into action. I didn’t know about the
citizenship revocation, but that would be something
to be worried about. INTERVIEWER 1: [INAUDIBLE]. CHRIS EDELSON: OK, go ahead. INTERVIEWER 1: I’d offer three
solutions on hyper-partisanship because I actually think that
there are things out there that can be done. Two of these have been
adopted in California. One is a Citizens
Commission redistricting, which means that– as you think about
redistricting, try and group people by geographic
interests, and not to gerrymander them into
particular districts. California does
that– they’re trying to mirror more closely the
partisan break of the state in those districts. And the second thing
that they’ve done is a runoff system instead
of a party primary system. So top two vote-getters
advance, which forces you to try and win
over the most number of people in a system rather than
catering to a narrow swath of the electorate. And then the third thing,
which you don’t actually see happening in politics, but
could happen in this nomination system, or could
happen generally, which is a range
choice voting system. And what that means
is that as you vote, you list your number one
choice, your number two, your number three. For people who come in at
the bottom of that ranking, and they have sort of small
numbers of supporters, those voters are redistributed
to their second choice until you get over 51%. And what that means is that
people have an incentive to be nicer to each
other in an election, because you are trying
to be everybody else’s second or third choice,
because you if you are coming in narrow to a small
group of people, you want to try and have a broad
appeal as their backup choice, and that tends to take down
some of the extreme posturing– like, I’m trying to find a
small group of extremists who will stick with me and
[INAUDIBLE] small group of ideologues who represent a
particular point of view who stick with me, and I’m
not interested in trying to appeal to other people. So I think there are
solutions out there in the electoral
system for how we think about hyper-partisanship that’s
not even beginning to touch the campaign finance piece,
which I think that there are other things you could do on
the campaign finance side which would help make people less
dependent on the national donors. But I don’t want to
leave people with a sense of this hyper-partisanship is on
a trajectory where it is never going to get better. There are things that you can
do within the existing system to make it better. And that actually makes me
feel better about this panel, because I do feel like we came
up with a number of solutions that could make things better. I’d like to thank the
panelists and thank all of you for staying. CHRIS EDELSON: Thank you. Thanks very much. [SIDE CONVERSATION]


  • Jonathan OBrien

    Fuck no it hasn't, it the cunts playing the big game who designed this situation to fail, the constitution has nothing to do with the bullshit the government is doing. Cdc restrictions on tests, Wtf that could of helped, w.a. converted a prison into a camp before making a slum hotel into a voluntary quarantine haha they wanted it to fail fucking evil, but hey yall made society so fucking clinically retarded, the will just believe anything the box in the corner shows them without questioning, the steps this state has taken and the country has take is disgusting and shows it's a obvious fucking attack and yes we know others beside the left stand to gain from this

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