A REPUBLIC - IF YOU CAN KEEP IT

Given that this past week saw the 237th anniversary of the signing of the newly-written Constitution by the members of the Constitutional Convention, it’s appropriate to consider a likely political situation that may exist after the November 5 election, which could go a long way toward seriously changing the way our constitutional government works.

At present, most informed observers believe the most likely outcome on November 5 - according to polls - is Kamala Harris winning the presidency, Democrats taking back the House majority, and Republicans winning a majority in the Senate.

While voters have indicated in several polls that they strongly prefer a Democratic-majority House to a Republican-majority House, and nationally prefer a Democratic Senate to a Republican Senate, the built-in constitutional bias regarding the Senate biases - with two Senators from each state, regardless of population - favors Republicans even more strongly than the Electoral College favors them in presidential voting. This is particularly true in this election cycle, in which Democrats have at least two Senate seats at risk of loss in Ohio and Montana, which added to the loss in West Virginia, ends with the Republicans holding a 51-seat majority in the Senate.

Yes, miracles happen, and yes, two polls now have Colin Allred ahead of Ted Cruz in Texas, while the polling is competitive in Florida, which would mean Democrats could have 50 seats with those seats if Montana and Ohio were lost, with Vice-President Tim Walz breaking tie votes. But both of these contests are “iffy.”

Thus, we’re close enough to the election to start thinking through what government divided along the lines described above would mean.

The important question depends on what the Republicans would do, how they would conduct themselves after losing another election with Trump at the top. Would he again try to overturn the result? Don’t count that out! Would the Republicans in Congress go along with him as they did four years ago? Also something not to count out!

Will a defeated Republican Party take every opportunity to make life as difficult as possible for the Harris Administration? Does a big bear relieve himself in the woods?

After President Harris is in the White House, would Trump finally face justice? Would he go to prison for his past crimes? Reading Joyce Vance, this will take time as he uses every legal way of stalling and delaying things, with multiple appeals in each case to a Supreme Court that can now be depended upon to deliver as skeevy a decision in each appeal as the situation would allow. At a minimum, these cases will not be decided before 2026 and the decisions could come even later.

Following defeat, I would bet my last dollar that Trump will lose control of the GOP when his cold dead hands are pried off the levers.

The fate of the Harris Administration will turn on the answers to these questions.

There is the remote and very unlikely possibility that Republicans would finally make a clean break from Trump, recognizing that his political method - the relentless lying and abuse - is as much to blame for their political defeat as the rejection of their policies by voters, and thus begin dialing back their extreme partisanship.

Please don’t hold your breath waiting for that. I hate seeing people turn blue and die.

Like it or not, the divided government scenario, combined with a MAGA Republican Party still taking orders from Trump and terrified of its base is a likely outcome in November. The party is so thoroughly infiltrated by MAGA at all levels - people who will believe that a 2024 victory was stolen from them - that Trump’s need for revenge will leave them with a “burn it down” goal. Whoever the Senate Republicans anoint as Majority Leader will be a figurehead reporting to Trump, as MAGA Mike has been with the House Speakership.

The Democratic response after losing the House in 2010 and 2022 has been: Hunker down. Scale back our ambitions. Accept the things we cannot change. Don’t court conflict. These are just the cards we drew. Take the long-term view.

This time around, if this is the scenario, there won’t be any “reasonable Republicans” to appeal to in order to accomplish anything. Trump would immediately go after any Republican who tried to find a way to keep things working; he wants destruction, for the system to burn. There are no courageous Republican officeholders left.

The Republican-majority Senate would most likely announce they will refuse to confirm Harris Administration cabinet appointments. The response would be for all Biden appointees in offices that require Senate confirmation to remain in those offices in the new Harris Administration. A better step wouldbe for Biden and Harris to collaborate on the appointment of a new cabinet; president-elect Harris deciding who stays, who goes, who gets shuffled around, with President Biden then submitting new nominees to the Senate - still controlled by Democrats - so they are in place when Republicans take control.

It will also mean a freeze on any and all judicial appointments till at least the 2026 midterms. The Biden Administration could use the period November 6, 2024 to January 3, 2025 when the new Congress takes office, to go on a judicial confirmation bender. Old liberal judges and Supreme Court justices should retire, with the Democratic Senate majority replacing them with younger appointees. Trump and the Republicans proved in 2020 that this process doesn’t need to take a lot of time.

Thus, the Executive Branch remains in existence, and fatal damage to the Judicial Branch is avoided..

But government in the normal manner would be impossible with massive Republican resistance in the Senate. The legislative process would grind to a halt with Senate Republicans stating they will only legislate through hostage taking, using the debt limit to threaten shutting down the government if their demands are unmet.

There will be very few Democrats in or out of office who will be willing to accept the old response. Thre will be strong popular and party support for a more “muscular” response.

There is one new thing in the governmental mix now: the Supreme Court’s decision that a president is immune from prosecution for any illegal actions taken in the “normal operation” of the presidency. This decision was obviously written to benefit Trump, but his name does not appear in the decision. “The president” - unnamed - has been granted this power.

In this scenario, despite Democrats having decried the decision, despite President Biden and Vice President Harris both having said they will not use such power, there will be support for changing that policy in the face of the administration being stymied by the opposition.

The debt limit is not law. It was originally set up during the Roosevelt Administration to allow congressmen to show their constituents they really were in “control.” The adminstration gave that power to Congress. Anything given can be taken back. And any Republican who wanted to make a fight of it in court would have to defeat the immunity decision.

And if the Supreme Court wanted to say “we didn’t mean a Democrat could do any of this,” President Harris could quote Andrew Jackson: “The court has spoken; let them enforce their decision.” And point to the immunity decision that didn’t mention anything about only applying to one person or party.

The president has the constitutional power to force the House and Senate into session, and then to adjourn them, in order to assure debate on key issues. When they were out of session, recess appointments can be made if and as necessary, that stay in office until the end of the congressional term (2026).

The Antideficiency Act prohibits the government from spending unappropriated money, which is why the government shuts down if appropriations don’t pass on time. To kep the governmen funded, President Harris can treat laws like this as advisory insofar as Republicans remain intent on breaking the government.

The power of the government to take control of a business in the name of national security could be used to strip Elon Musk of his control over national defense assets like Space-X and critical infrastructure like Starlink.

If I was a senior member of the Harris Administration during the transition after the election, I might well present this solution myself, if this was the situation.

Unfortunately, following such a strategy would also go a long way toward “destroying the village in order to save it.”

All this and more is “interesting” to contemplate, but there is one thing that must be faced.

Doing any of this inflicts massive damage on our democratic constitutional form of government.

Whether it is Donald Trump using Project 2025 to end democracy, or Kamala Harris using a suspect Supreme Court decision to save democracy, the result is the same.

This conundrum has happened before.

The failure of the institutions of the Roman Republic to continue effective government was what led the citizens to support Julius Caesar, and to support Octavian when he took power following the Civil War, ruling as “First Tribune.” Throughout his time as Emperor in all but name, Octavian expressed support for restoring the Republic. It might have actually worked at that early point in the Imperial period, but there were always crises to be dealt with, there was lack of cooperation among those who might run things in a restored Republic; the result was that the Empire remained.

What we would have is what is called The Octavian Solution: the Republic was never officially overthrown; most of its laws and norms remained. But what passed for a “republic” was in effect an authoritarian empire.

We are left with the fact that the only way we can save the American Republic is to save all of it.

The only way to avoid the scenario presented here is to win two Senate seats in November, whether they are in Ohio, Montana, Texas or Florida.

And also to realize that any victory on November 5 is only temporary, so long as MAGA continues to exist, so long as the Republican Party remains the party of Treason.

Winning on November 5 is only the Battle of Midway. It will take further victories in 2026., 2028, 2030 and 2032 - at a minimum - to fully restore and protect the Republic.

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