One question hangs over American constitutional government. What are Republicans planning? In immediate terms, it is obvious they are planning to support Donald TrumpDonald TrumpTrump defends indicted GOP congressman House to vote Thursday on holding Bannon in contempt Youngkin calls for investigation into Loudoun County School Board amid sexual assault allegations MORE and ride his base to victory. In broader future terms, however, their planning is not so obvious. What are they actually hoping to achieve for the future of American constitutional government?
To begin to answer that question, it is essential to recognize that in the past three years, Republicans have embraced six principles destructive of constitutional government. First, the president has the right to negate separation of powers supervision by preventing Congress from obtaining relevant evidence of executive misconduct. Second, he has the right to use the powers of office to pressure foreign governments to intervene in American elections to serve his personal purposes. Third, the president has the right to utilize federal agencies to serve his personal purposes.
Next, he has the right to compel the Justice Department to protect his friends while investigating and prosecuting his enemies. Fifth, he has the right to use legislative appropriations for his own purposes rather than those of Congress. Finally, he cannot be impeached because removal from office would then illegitimately overturn a presidential election.
All those principles are not only unfounded and antithetical to American constitutional government, but they are also lethal to any party that does not control the presidency. That undeniable consequence of their actions suggests that Republicans have, like King Richard III, bet their future on a cast of dice and is prepared to gamble that in 2020, they can maintain control of the presidency and then cement their control as permanent.
That possibility seems far fetched until one considers that for the last two decades, Republicans have worked to restructure the political system to entrench themselves with power. They enacted voter suppression laws across more than a dozen states to minimize Democratic voter turnouts. Between the elections of 2012 and 2016, they had eliminated more than 860 polling places in areas with significantly black and hispanic voters.
Similarly, Republicans gerrymandered state electoral districts to ensure dominance in many state legislatures and disproportionate numbers of Republicans in the House of Representatives. Despite receiving only a minority of the total vote in some states, their gerrymanders enabled them to elect a majority of legislators in those states and also send a majority of the delegations from those states to serve in Congress.
More disturbing, Republican justices on the Supreme Court consistently supported those entrenchment efforts with a stream of majority party line votes. In 2000, they issued an unprecedented decision that terminated a disputed election and ensured victory for the Republican presidential candidate. In following years, they invalidated campaign finance limits, upheld voter suppression laws, voided the federal statute that protected voting rights of minorities, and defined political gerrymandering as wholly free from important American constitutional limitations. Each decision enhanced the ability of Republicans to cement themselves in power.
Encouraged by those entrenched advantages, Republicans understand they can also exploit other structural advantages. The Electoral College means they need not be concerned with winning the popular vote. In four of the last five presidential elections Republicans lost that vote, yet in two of the four the Electoral College victoriously gave them the White House. This occurred most recently in 2016, when their candidate lost by nearly three million popular votes yet won the presidency. That inspires their planning, and they are convinced they can repeat that win in 2020.
The Senate provides them with yet more political leverage. They know that it virtually guarantees that they can continue to control it with far less than a majority of the popular vote. Moreover, with only 34 senators from states holding less than 20 percent of the national population, they can protect Republican presidents against potential impeachment efforts.
Republicans also know very well that as long as they maintain control of the presidency, they will command huge electoral war chests. They know that as long as they do so, Democrats will never be able to come near their fundraising or be free from limits imposed by potential donors of exceptional wealth. Further, when it comes to Russian interference in presidential elections, Republicans have now in effect welcomed it.
Finally, Republicans believe that if they control the presidency and Senate for four more years, they can forge the Supreme Court into a guaranteed party instrument no longer dependent on majorities. They believe they can create a high court that will reliably adopt all their policy goals, bow to presidential power, and affirm whatever expanded entrenchments they deem desirable. It no longer seems far fetched that Republicans are now planning this. Their gamble in 2020 could be fatal not just for Democrats, but for constitutional government itself. Only a massive and determined popular effort to prevent the reelection of Donald Trump can stop them.
Edward Purcell Jr. is a distinguished professor with New York Law School and is the author of “Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon” set to be published this winter.