Buckle up: The radical revision to the country’s balance of power that voters ordered on Tuesday will bring some constitutional stress tests. The GOP’s collapse could help wind down the current era of hardball politics or precipitate a rupture in the constitutional system.
The first test, already on everyone’s mind, involves the intensity of the coming Democratic investigations of the Trump administration and people associated with it. Powerful committees in the House and Senate — presumably staffed by an influx of amped-up liberal lawyers — will take on a quasi-prosecutorial role in probing alleged abuses, such as extrajudicial killings of suspected drug-runners, noncompliance with judicial orders and financial self-dealing. Though congressional investigators can’t bring charges, they can create a road map for future prosecutors.
The people and institutions targeted by the avalanche of Democratic subpoenas will fight them, but how much relief will they find in court? Steve Bannon and Peter Navarro both went to jail for resisting subpoenas from the House select committee that investigated the Jan. 6, 2021, Capitol riot; the coming investigations will presumably sweep more broadly. The lower federal courts in Washington lean left and are likely to be a favorable venue for congressional Democrats. Though the Supreme Court takes a broad view of executive immunity, some justices might be hesitant to spend political capital shielding a severely weakened administration.
The second test, still flying below the radar, involves the country’s rules for electing a president in 2028. Democrats could be poised to abolish the electoral college before the next election — or at least claim to have done so.
States that have ratified the National Popular Vote Interstate Compact promise to award their electors to the presidential candidate who won the most votes nationwide, rather than the candidate the state’s voters preferred. The compact has been ratified by all states with Democratic “trifectas” (that is, Democratic governors and two Democratic houses of the legislature). The signatories totaled 222 electoral votes before this election — 48 short of the 270 needed for the compact to go into effect.
This week’s election created new Democratic trifectas in Michigan, Nevada, Pennsylvania and Wisconsin, amounting to 50 electoral votes. If Democrats in those states ratify the compact as other Democratic states have done, the ground rules of the presidential election will be in question.
The compact would be challenged in court, of course, and there’s a powerful case that it requires congressional consent under the Constitution’s interstate compact clause. But what if the solidly Democratic Congress votes to give its consent? The president’s approval might also be needed, but that’s more debatable. In a close election, trying to implement this end run around the Constitution’s design would be … an adventure.
The third test involves the Supreme Court. The 6-3 conservative majority on the high court — cemented in 2020 with the confirmation of Justice Amy Coney Barrett — suddenly appears much more precarious. All of the conservative justices not appointed by President Donald Trump are now in their 70s, with Clarence Thomas the oldest at 78. The scope of the Democrats’ Senate victory this week was so breathtaking that even if a Republican wins the White House in 2028, Democrats are likely to maintain Senate control. It’s hard to imagine a Democratic Senate confirming a Republican president’s Supreme Court nominee after the GOP Senate blocked President Barack Obama’s nominee, Merrick Garland, in 2016.
By the time the senators elected this week face voters again in 2032, giving Republicans a chance to recover seats in red states like Texas and South Carolina, two conservative justices will be in their 80s. Why the aging justices most sympathetic to Trump’s legal positions (Thomas and Samuel A. Alito Jr.) decided to deny Trump an easy opportunity to replace them is known only to the justices themselves. The coming years could embolden Democrats to challenge the Supreme Court more aggressively if they perceive that its conservative supermajority is effectively a lame duck.
The fourth possible constitutional showdown is around pardons. It’s widely assumed that Trump will issue mass preemptive pardons to members of his administration on the way out of office to shield them from future prosecution.
Meanwhile, voters’ sense of government corruption was a significant driver of the GOP wipeout, with 90 percent of voters rating the issue “crucial or a major factor” in NBC’s exit poll. Imagine if someone like Sen. Jon Ossoff (D-Georgia) wins the White House in 2028 promising to prosecute violations uncovered by congressional investigators. Then imagine that a lame-duck 82-year-old President Trump, his approval sagging even further than today, pardons hundreds or thousands of political allies en masse. It’s hard to imagine those pardons being fully respected by the subsequent administration. The Constitution gives broad powers, but there are political limits to how they can be exercised without breaking the system.
One reason for America’s hardball politics in the past decade and a half is that the parties have been so closely divided. Control of the government has hinged on a declining number of swing states and districts. If only narrow majorities are possible, the parties just aim to get narrow majorities.
This midterm election blew up that assumption (by the way, so much for the Republicans’ “structural advantage” in the Senate). If the future of politics is really up for grabs in an age of accelerating change, then perhaps the coming constitutional tests will conjure up some statesmanship in one or the other party’s ranks. That would mean negotiating the showdowns with at least an eye toward durable settlements rather than temporary advantage.
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