Last week, the anonymous piece by “Decius” in the Claremont Review of Books prompted many responses arguing against the comparison of this election with the last-ditch effort to storm the cockpit on 9/11 as the heroes of Flight 93 did 15 years ago, saving untold lives through their courage. Now, Decius is probably exaggerating the consequences of another Clinton presidency, but if the #NeverTrump camp wants to be taken seriously, they need to explain how the same checks and balances that have utterly failed to hold back the progressive agenda of President Obama will somehow become effective against the far more ruthless, experienced, and cold-blooded Clinton family and their well-tuned political apparatus.
If elected, Hillary Clinton would be able to immediately fill the vacancy caused by the passing of Justice Scalia, thus moving the balance of the Supreme Court the farthest to the left it has been since the 1960’s and possibly even since the 1930’s. What’s more, Justice Ginsburg and/or Justice Breyer may decide to retire, thus opening up additional vacancies to be filled with younger justices, thus guaranteeing liberal dominance of the Court for decades to come. If this election truly is not the last ditch and we are better off saving our forces to fight again another day, we must seriously consider what our options would be for the supposed counterattack.
1. State Level Actions
During the Obama presidency, the Pro-Life movement has made enormous progress with state-level initiatives. We are also seeing a growing movement to enact Religious Freedom Restoration Acts to explicitly protect the conscience rights of not only Christians who hold to the traditional and biological definition of marriage, but all religious minorities as well. These laws are already being challenged and overturned. Most notably, Justice Alito wrote with grim prescience about the case of Storman’s Pharmacy in Olympia, Washington which is now compelled by state law to dispense abortifacient contraceptives, even though they were already providing referrals. Taken with the Surpeme Court’s decision in Whole Woman’s Health v. Hellerstedt, it’s wishful thinking that even the most basic state-level protections of life and conscience rights will be safe with a hostile federal judiciary.
2. Constitutional Amendment
The argument goes that if progressives overplay their hand and usurp the will of the people through executive and judicial fiat, the people can respond by amending the constitution to restore their sovereignty. While this is true in theory, it would be extremely difficult given the hyperpartisan breakdown of staunchly red vs. blue states. More importantly, a constitutional amendment will do no good if the judiciary entrusted with its interpretation is ideologically opposed to upholding the plain meaning of the text. The most famous example from our history is the Slaughterhouse Cases which effectively nullified the Fourteenth Amendment as applied to the states, thus allowing institutional racism to continue for another century after Reconstruction. If progressive jurists don’t like what the Constitution says, they will simply pretend it says something else.
3. Congressional Inaction
A far more likely approach would be for Congress to continue as it has during the last six years by obstructing as much of the progressive agenda as possible. However, during the Obama presidency, the Congress has had somewhat of an ally in the Supreme Court. This would no longer be the case in a Clinton presidency. Where President Obama has had his more egregious executive abuses–such as recess appointments–undone by the judiciary, another President Clinton would meet no such resistance. This option also depends on a big if: that Clinton will win the White House, but her party will fail to capture majorities in either house of Congress.
Even if that is the case, whether in response to judicial nominees, the repeal of Obamacare, funding of Planned Parenthood, NSA wiretapping, due process protections for U.S. citizens abroad, or any number of other issues, Congress has tried to use its power to block appointments and withhold funding even to the point of shutting down the government, but has not succeeded. The theatrics of Senators Ted Cruz and Rand Paul have come to nothing. Even the sorry spectacle of octogenarian World War II veterans storming the barricades on The Mall did not carry any lasting political cost for President Obama. As long as Congress remains essentially deadlocked with neither party commanding a veto-proof majority, there will be no way to stop Hillary Clinton from commanding the bureaucracy to execute her will.
Without the backstop of the judiciary to address individual abuses, Congress has recourse to the extraordinary power to remove Clinton from office. The thinking goes, with so much controversy swirling around her, there must be something there that will prove fatal. However, thanks to a meticulous cover-up orchestrated by Hillary Clinton’s white-shoe legal team, Congress has thus far failed to obtain a smoking gun in the Benghazi hearings, as well as subsequent investigations into Clinton’s private email server, mishandling of classified information, and pay-to-play diplomacy. Also, as with the preceding, this option depends on Republicans retaining a majority in the House or Representatives to even bring the articles of impeachment to the Senate.
Furthermore, given the difficulty of finding evidence and the adeptness of the Clintons at skirting any personal culpability in the numerous scandals that seem to have followed them throughout their political career (so many, in fact, that they have their own Wikipedia category), it would be out of character for them to slip up now and to be caught red-handed. Even if impeachment proceedings are brought against Hillary, we can reasonably expect history to repeat itself and for the Senate to fall well short of the two-thirds majority required for removal, just as it did for her husband.
5. Convention of States
As a last resort, the states could band together to force action even without Congress. This is the wildest of scenarios that has been proposed. The one appeal of this approach is that the threat of such a convention might prompt Congress to act to save itself from oblivion, as was arguably the case with the enactment of the Seventeenth Amendment. However, in order for this approach to work, there would need to be a specific constitutional amendment more limited in scope already drafted and ready for congressional passage. Proposals like congressional term limits, a balanced budget amendment, or a recapitulation of the Tenth Amendment are often mentioned. Failing that, it’s unclear how such a convention could redress the particular and specific harms of the regulatory Leviathan without toppling the entire beast.
Absent a compelling argument for a specific amendment, the risk of this approach is that even if it were politically feasible (which is doubtful) actually invoking Article V of the Constitution would probably be a disaster. The original drafters of the Constitution were mainly gentlemen of leisure who devoted their lives to scholarship of classical philosophy, the law, and political theory. Given the comparative civic illiteracy of the general public and even many politicians today, it is most unlikely that a contemporary constitutional convention would produce a new system of government that would be superior to the particular genius of the founding fathers.
In summary then, we have many theoretical–if not practical–options at our disposal to preserve the Republic in the face of what will almost certainly be an unprecedented concentration of power in the hands of the Clintons. For those who cannot stomach a vote for Donald Trump, these options must be weighed honestly and carefully. How feasible are they? How likely are they to have the desired effect? What are the unintended consequences and the precedents that would be set in motion by these increasingly drastic measures? How much damage will have to be undone in the aftermath?
Your humble writer sympathizes with the view of the #NeverTrump camp that the risks of a Trump presidency are grave and dire. However, at the same time, all of the remedies listed above would be just applicable to Trump as to Clinton. Moreover, in the case of Trump, the existence of the #NeverTrump movement at all is proof that there would be a bipartisan consensus to oppose him. There would be no such unity of purpose in opposing another President Clinton.
Perhaps the fate of the Republic does not hang in the balance of this election. Perhaps there are limits to the damage that Hillary Clinton can do to our constitutional order. Perhaps we will not have to rest our last best hopes on these fail-safes. These things are all possible. It is also just as possible, and perhaps more so, that to oppose Hillary Clinton, electing Donald Trump might be the least bad option–and the most likely to succeed.