Wednesday, November 16, 2016

The Constitutional Trump Card That Wasn’t Played

Guest Blogger

David Pozen

Donald Trump is not yet the President-elect.  Under our constitutional framework, the Electoral College will select the President next month.  Electors customarily vote the way their state voted.  But many states don’t require that they do so.  As pundits have started to point out, a few dozen “faithless” electors could—lawfully—send Hillary Clinton to the Oval Office. 

This leads to an apparent puzzle.  One of the Electoral College’s purposes, at least on some accounts, is to provide a check against charismatic demagogues.  For many months now, civic-minded critics have called Trump a fascist, a white supremacist, a sexual predator, a pawn of Putin, “a one-man constitutional crisis,” and “an extinction-level event” for liberal democracy.  Both Clinton and President Obama have insisted that Trump is “uniquely unqualified” to be President.  Clinton, moreover, received the most votes nationwide, and she might have done a good deal better if not for Republican-led voter suppression.

Critics have a variety of grounds, then, for challenging the legitimacy of a Trump presidency, and in the Electoral College they have a constitutional tool that might derail it.  Yet no public officeholders have even raised the possibility.  Why the reticence?

There are some obvious concerns.  It would be exceedingly difficult to engineer an Electoral College bailout.  If it could be done, millions of Trump supporters would feel cheated by the “rigged” system that Trump has denounced all year.  Violent protests could well erupt.

As weighty as these concerns are, they don’t necessarily solve the puzzle.  Clinton, after all, won the popular vote, leaving her supporters feeling cheated.  If switching to Clinton would nonetheless be unrealistic or unwise, progressives could join with conservatives to find a Republican capable of siphoning enough votes from Trump to deprive him of an Electoral College majority and throw the race into the House, which could then elect this other Republican.  And if a true fascist is on the verge of taking power and the opposition has a lawful means to head him off, even one that might fail or backfire, doesn’t the opposition have a duty to try? 

Political judgment is complex, and it is easy to second-guess from the outside.  The Democratic Party leaders and the “Never Trumpers” in Congress may be right to hold back.  Even still, the fact that they so immediately and decisively abandoned the Electoral College suggests a couple of awkward lessons.

The first is that these officials do not fully believe their own apocalyptic rhetoric about Trump.  He may be a demagogue, but they doubt his ultimate desire or ability to shatter our system of government.  Never Trump, we can now see, was more of an aspiration than a commitment.  Because again, if you truly believe that someone poses an existential threat to democracy, you do not accept his claim to the White House—and normalize his coming presidency—without attempting an appeal to the final gatekeepers, imploring them to keep faith with their country, Constitution, and conscience rather than a local voting majority.  (As part of any Electoral College bailout strategy, the vocabulary of “faithless” electors would need to be resisted.)

The second lesson is that the Democratic and Republican parties are now divided not only on what they think the Constitution means but also on how they engage in constitutional conflict.  The Republicans are bolder.  Asking electors to reject their state’s winner would unsettle a longstanding norm, which is a serious step in a polity that depends on such unwritten traditions.  But congressional Republicans have not hesitated to flout numerous conventions of constitutional government in an all-out effort to sabotage the Obama presidency, from threatening to default on the national debt to using the filibuster as a routine tactic to refusing to give a Supreme Court nominee a hearing.  

Trump himself has participated in this destructive project, urging Senate Republicans to stonewall the Merrick Garland nomination and promoting the false claim that Obama’s birthplace makes him constitutionally ineligible to be President.  Trump of course also refused to pledge that he would accept the results of the election, should Clinton have prevailed.  

Democratic and Republican officials have both done plenty of unsavory things in recent times.  But as the events of the past week reveal, a gulf has opened up between the two parties in their willingness to resort to technically lawful yet extreme measures to combat what is seen as an unacceptable outcome.  Democrats, by and large, have been more beholden to a model of traditional legal process.  They have been less willing to play constitutional hardball.

The refusal to play hardball reflects a restraint that is admirable, indeed essential, in ordinary times.  But it can also amount to unilateral disarmament in a genuine moment of crisis.  

Here, at least, it misses an opportunity not just to challenge Trumpism but also to force a bipartisan conversation that is long overdue—about whether the Electoral College is justifiable in the first place.  An aggressive appeal to the electors would have risked inviting tit-for-tat retaliation by future candidates, destabilizing our system of elections and galvanizing reform efforts.  Given the Electoral College’s deep democratic flaws, that prospect is hopeful as well as terrifying.

David Pozen is Professor of Law at Columbia Law School. You can reach him by e-mail at DPozen at

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