Welcome to Third-World Democracy and Impeachment

Are Chinese leaders correct in thinking that the U.S. is in irreversible decline, despite our current economic vitality? The impeachment process in the House of Representatives certainly reinforces the view of certain foreign, authoritarian leaders that the U.S. is descending into a political chaos that characterizes third-world “democracies” and which often leads to one-person rule.

The impeachment of President Trump resembles attempts to impeach presidents in the Philippines. That former U.S. territory has a constitution that in some ways is, and in important ways is not, like that of the U.S. The Philippine impeachment process is divided between two houses, as in the U.S. Attempts to impeach presidents in the Philippines, however, have become routine in recent years, even an annual event from 2004 to 2008. The current president of the Philippines has been fighting off attempts to impeach him since his election in 2016

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The U.S. House voted to impeach only after all efforts to show corruption of the 2016 presidential election failed. Moreover, unlike the Philippines, there’s no reason to believe that the next presidential election will be corrupted.

The impeachment of President Trump is really all about the struggle over institutional power as between Congress and the president.

Since Woodrow Wilson, progressives have opposed the Constitution’s structure of separation of powers. They don’t like a president independent of Congress. Instead, they would prefer a parliamentary system with a prime minister who is the creature of the legislature.  

Our Framers empowered the president, when necessary, to “obstruct” the Congress. As James Madison wrote in Federalist 48, “The legislative department is everywhere extending the sphere of its authority, and drawing all power into its impetuous vortex.” Therefore, said Madison, “It is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.”   

As Madison explains in Federalist 51, the Constitution has been designed to weaken the Congress through bicameralism and to strengthen the president and the judiciary, the two weaker branches, so that they can defend themselves against legislative abuse of power. 

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The Democratic majority, fearful that President Trump will be reelected, feels compelled to remove him. If he gets reelected, it is a virtual certainty that by the end of a second term he would nominate a replacement for Justice Ruth Ginsburg. That prospect terrifies the left for so many reasons.

As relates to Congress, the issue is the potential dismantling of the administrative state. The Trump administration has done much to deregulate the economy. More importantly, President Trump’s two Supreme Court appointments are opponents of the “delegation doctrine.” In last term’s Gundy case, Justice Neil Gorsuch wrote for three justices in dissent that Congress’s overly-broad practice of delegating to federal agencies is unconstitutional. Even without another appointment, Justice Samuel Alito has indicated in a separate concurring opinion that, in a future case, he might join the four dissenters. Justice Brett Kavanaugh, who did not participate in the decision, is expected in a future case to join the three dissenters, possibly providing a majority of five. As Justice Elena Kagan wrote for the four-justice plurality, if the view of the dissent prevails, “most of the government is unconstitutional.” 

The only way the left can preserve the administrative state built by Franklin D. Roosevelt is to remove President Trump and intimidate the justices by threatening to pack the court.  Fortunately, the constitutional system created by Madison and the other Framers has, thus far, prevented the U.S. from descending into a third-world “democracy.”  

John S. Baker Jr. is professor emeritus, Paul M. Hebert Law Center, Louisiana State University and chairman of Our Citizenship Counts, a group of legal scholars and community partners. He has been a consultant to USAID, USIA (now part of the State Department), the Justice Department, the U.S. Senate Judiciary Subcommittee on Separation of Powers, and the White House Office of Planning. Follow him on Twitter @JohnSBakerPHD.