The Coming Constitutional Crisis

There’s a constitutional crisis brewing between a duly-elected president of the United States and a politicized, lopsided Supreme Court. Here’s how it might play out.

We are already in the weeds. The question is how deep into the weed are we going to go

After this Supreme Court kills affirmative action in higher education, which is the litmus test for undoing other forms of preferential practices, permits state legislatures to eliminate strong Democratic districts while blocking Democratic voters from voting, and decides other juicy items on the current docket on the basis of fundamentalist belief systems, it might not be such a far stretch to imagine this Court attempting to nullify this president.

Let’s suppose that the Republicans regain control of both houses next month. What is to stop them, come January, from invoking the nuclear option and reducing the cloture vote to a simple majority?(Unlike the Democrats, who have always feared invoking cloture, those schemey Republicans already have plans in place to vote cloture back up to the three-fifths majority if they lose control of the Congress, during that dangerous period between election day and the seating of the new Congress.)

Rules changes cannot be blocked by a filibuster so opponents of a rule change can’t filibuster a change in the cloture rule.

Once the Republicans have knocked cloture down to a simple majority, then they could enact whatever crazy bills they choose to enact, forcing Biden to use that veto.

If, but more likely when, that happens, Joe Biden’s veto pen will be all that stands between us and a permanent Republican hegemony.

Push will come to shove when Biden vetoes some cherished piece of Republican legislation…and the Republicans bring suit to overturn Biden’s veto. Would-be 2024 presidential aspirants would bring suit, starting with the Donald himself.

The Supreme Court will rule against Biden…and that will be the final blow to American democracy.

Yes, this would clearly be an unconstitutional act on the part of the Supreme Court but, when the Supreme Court has the power to determine what is constitutional and what isn’t, who will overturn the Supreme Court’s verdict? This Court won’t overrule itself.

This is the final fatal flaw that was built into the Constitution. The United States is actually governed by any five members of the current court.

The balance of powers is lying in ruins…and we appear to be incapable of reacting to that reality. We are like deer frozen by the headlights of an oncoming juggernaut.

The Republicans are in a hurry. They want what they want and they want it now because they know that the wheels are going to fall off their party wagon once their draconian, anti-populist agenda begins to hit home and their constituencies start feeling the pain and realize how badly they’ve been scammed.

The Grand Old Party wants to shatter the climate accords, walk back alternative energy schemes, kill Social Security, murder Medicare, and install faith-based tests for voting rights and election to public office. I’m not making this shit up. They say this shit all the time, but we turn deaf ears to their manifestos because we just don’t believe that they’re serious. They are. The lunatic fringe is in control of one-third of the electorate.

Like sharks, the Republicans have to keep moving forward, putting the pedal to the metal, because they know their constituents have very short attention spans, so it behooves them to keep up the full-court press by introducing legislation that caters to the prejudices of that constituency. If they don’t do this, that constituency is quite likely to “primary” the current incumbents out, replacing them with even more reactionary substitutes.

Now, let’s get real. The Democrats are going into next month’s election with both hands tied behind their backs.

Thirty-five Democratic representatives are throwing in the towel for one reason or another. That’s 35 INCUMBENTS who will not be standing for re-election…and that virtually guarantees the Republicans will regain control over the House. Balletopia reported 22 Democratic defections in June. The NYT recently reported 30 Democratic retirements from the House. 270 to Win reports 35 Democratic retirements from the House vs. 28 Republican defections, giving the Republicans the opportunity to pick up seven more seats than the Democrats have a shot at.

At this moment, there are 220 Democrats and 212 Republicans in the House, which means that the Republicans only need to pick up eight seats out of the 35 Democratic districts now in play….without losing any of their own seats.

The illusion that the Democrats control the Senate would be shattered by the loss of JUST ONE of the Senate seats currently held by Democrats (without any offsetting gains of formerly Republican seats.) With Sinema and Manchin firmly glued into their seats, one turnover will put the icing on the cake.

Once the Republicans gain control over the next Congress, there is absolutely no reason for them to wait until 2024 to launch their assault on America because control over the Congress is the bird in the hand…but regaining the White House in 2024 is the bird in the bush. It is also a good campaign strategy to launch their attack in 2023, using that tactic to consolidate the support from their Neo-Nazi, racist, fundamentalist, faith-based voter base.

If Biden is forced to unlimber his veto pen, vetoes of legislative offerings tailored to the prejudices of that voter base could trigger a groundswell against the eventual Democratic candidate in 2024. Remember, the Republicans are evil, not stupid.

Republican leaders and the money bags who own them know that 2024 is a crap shoot for them. If Trump runs again — and does anyone think he won’t, assuming that he isn’t serving time or living in exile in a non-extradition destination? — that might very well trigger a vicious primary battle between Trump and other aspirants for the thorny crown. (And do remember that Eugene V. Debbs once actually ran for president from a prison cell.)

If Trump wins the nomination — as he very well might — the Republicans would be going into the 2024 presidential campaign with a shopworn, badly damaged, and deeply hated candidate. I think that a Trump candidacy in 2024 would actually be a good thing for the Democrats because I am pretty sure that Trump would lose, even against Biden…and I am virtually certain that Biden won’t be running again, nor will Harris be stepping into his shoes, which means there may be a real primary battle among the Democratic aspirants. (That would be good. It would add some vibrancy to the moribund Democratic leadership.)

The Republicans know that they are the smallest major political party in America, behind “None of the Above” and the Democrats. Their success in 2024, regardless of which candidate they offer up — depends upon the extent to which Republican-controlled legislatures have managed to deny non-Republican voters their voting rights…but presidential contests are always crap shots anyway, so why wait when you can throw the bird in hand onto the barbie and get cracking.