Why Trump can not take over like Hitler

I hear alot of people saying, and I know people are worried, that Trump’s rise is akin to Hitler, Mussolini, or Yugoslavian strong man Milosevic, or even what is currently happening in Turkey, and though I sympathize, those countries had mechanisms that allowed them to have or gain unchecked power.

Our constitution severely limits the office of the president, and curtails what congress can do. The independent judiciary is by far the stalwart of minority rights and civil liberties. To limit this, the judiciary is an adversarial system and requires harm or the potential of immediate harm to bring a case. Also, only those directly involved can bring a case. All of them controled the countries media and once in power, banned all dissent, this is something I have a hard time believing can happen in the US.

Lets take some of the ones above in detail and describe the differences.

Weimar Republic (1918-1933)
The constitution included Article 48, which allowed the suspension of, among other things:
Habeus Corpus
Privacy of a persons home (think 4th amendment)
Coorespondence Privacy (think wiretapping)
Free Press
Assembly
Clubs and Societies
Right to property

The US constitution allows the suspension of habeus corpus can only happen in rebellion or invasion. During the civil war, in Ex Parte Milligan, the supreme court ruled that Martial Law can not be declared if civilian courts are operating, and that US civillians can not be tried in military comissions. Also, even if martial law is declared, civilians can only be detained, not tried by the military. There is also a question of whether congress would need to declare that a rebellion or invasion is occuring before any of this can happen.

The main item that enabled Hitler to take power was the Enabling Act. The closest thing I can find in modern history in the US is the Line Item Veto, it allowed the president to cancel items in a budget bill. This was brought before the supreme court when Bill Clinton used it on a healthcare expenditure earmarked for NYC. A group of senators tried to take it to court before it was used, but they lacked standing, because they had not been harmed by the bill. NYC had suffered real harm, as did a few other groups, and the act was ruled unconstitutional at the DC district court. A provision in the bill skipped the appeals circuit and had the bill land directly at the supreme court. It was a 6-3 decision (Breyer, O’Connor, Scalia, dissenting in judgement).

The opinion stated that the president can either reject or sign a bill, and can not modify what is obstensivly the will of congress when writing the law.

That is not to say that congress could not write a law of questionable vagueness and give the president sweeping powers, but history has shown that is rare. Also, congress can not write a law that violates the constitution, and there is no provisions for suspending or curtailing almost all of the rights guaranteed to the people. Habeus corpus being an exception, as is quartering troops in time of war, which congress has to declare and hasnt since World War 2.

The president has only a few areas of extreme deference from congress, Military command, since he is commander in chief by the consitution, foreign diplomacy and that is all. The rest of the presidents power, including ratifying treaties, and even immigration is devolved from laws or requires congressional consent. As this current president has a tenuous relationship with congress and a razor thin majority in the Senate, he’s not going to be able to affect really anything that can’t be undone by the next guy in the seat, since he is undoing what the previous guy in the seat did.

Mussolini
Italy was a kingdom still at this stage, but was a constitutional monarchy, the prime minister was appointed by the king. During the 1920s, during a general strike, Mussolini’s new facist party led a March on Rome to either get political power or begin a Coup. They demanded that Mussolini be Prime Minister, and the king acquiesced, his other choice was an anti-monarchy party. They then passed a law with the support of minority parties to require that any ruling party or coalition get 25% of the popular vote, and that that party would get 2/3 of the seats in parliment. With intimidation and force, the fascist party got the 25%. They then passed a ton of reforms that made him the sole power in Italy. Replacing local elected officals with appointees and removing any dissent. The courts were reorganized by law (which was allowed) and made ineffective. Also, Mussolini had a cult of personality like Hitler and people were willing to commit violence for him. The courts in the US are organized by law, and they can be changed, but the state governments can not be replaced by appointees of the federal government, since each state is guaranteed a republic form of government. State courts would be unaffected by any federal court changes, and though federal law does supersede, where it is silent, federal judges must take into account state laws. Roosevelt tried a supreme court “packing” which was not carried by congress, that could happen again, but with a razor thin majority, it would be a tough sell.

This just isn’t possible in our country. We have 2 parties, 25% of a party is easy to get. We do not have proportial representation we directly elect our reps and senators. And then there is that pesky, very difficult to modify constitution, and strong judiciary. Also, I am not sure a massive uprising to make Trump our dear leader through intimidation and suppression is gonna happen. For the republican party….it might by suppression and gerrymandering, but not by violence.

Yugoslavia
It started in the communist era, when a perceived threat required constitutional changes. Serbian police watched carefully as Albanian assembly members voted for a constitution that was exactly what the serbian commuinist party wanted.

Milosevic rose to power on the back of that threat, and used his strong man tactics, communist party and weak judicary to get his power. Once in power, he consolidated it, and though there were nominal elections, he won each of them until 2000.

Again this required constitutional changes, and its hard to think that 2/3 of congress which would require minority party support and then 3/4 of the states, 12 of which are firmly in minority party, and another 6 are split with one party holding each chamber, would be able to get anything that sweeping or power grabby through.

The constitution is hard to amend on purpose.

Turkey
Again, emergency powers come into play here. It allows decrees of law that reflect state security. To be fair, they did have the appearnce of a coup attempt, but now they are purging judges with trumped up corruption charges and promoting symptheic judges to higher court.

I have to say, this one is the most likely scenario for a totalitarian state in the US, but unless 3/4 of the states agree to change the constitution, it will have a shelf life.

The keys in alot of these coups and power grabs was a people who have had many constitutions, not just changes, but wholesale new fundenmental law. Also, the judiciary either was made ineffective or was complacent in these changes. The other factor was a perceived or actual violent threat and the ability of the sitting government to suspend constitutional provisions. The enabling ability of the executive dept without legislative dept control is another major factor.

All in all, the US is not set up like any country in the world. Each of the 50 states has proportional and defined representation in the legislative body which can delegate execution but not actual legislative ability to the executive. All of this watched and regulated by a judiciary which is strong and independent. Officers of the executive are sworn to uphold the consitution, and not to any one person or office. The military is sworn to protect the country and constitution from all threats foreign and domestic. There has never been a case where a president could be considered a threat to the constitution, but if anyone could, it would be a man like the one in office now. The senerio I envision is an EO he promulgated is considered unconstitutional and stayed or struck down, but he still orders his subordinates to execute the order because he sees it as imperative to protect America. That would cause a constitutional crisis, and require officers and executive branch people to choose between upholding their oath to the constitution or obeying an order from their boss. I don’t want that, but I could see it happening with this current administration. Also, any officer of the US who violates a court order, even in the course of official duties(such as CBP denying entry to a green card holder because he is from a country on the ban that is currently on hold) opens that officer to contempt of court as well as civil penalties and removes all immunity from the person relating to the illegal acts.

Any attempt to mess with any of the fundamental tenants of the American system would be met with enough backlash from the 74% of voting eligible (over 18, a citizen, and not a felon or medically disqualified) public who didn’t vote for Donald, and the 50% of the same pool of eligible voters who are not registered to a party.

At least….I hope.

The floor is open.

Why the President does not represent the people…and was never intended to

Opinion piece, meant for stirring discussion and posing questions.

Back in 1786, the fledgling united states was run under the Articles of Confederation. These were very very states rights oriented and left very little power to the federal government. In fact, the second article, after the naming of the nation, says: “each state retains its sovereignty, freedom, independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated.” It sounds alot like the states rights amendment, except this confederation gave a lot less power to federal government. The federal govt had the power to declare war, and conduct foreign policy and trade deals. It banned state standing armies, but allowed militia (think national guard). It also limited delegates to 3 years out of six, so there was a rotation.

The articles were not perfect, in fact, very far from it. They required a lot more unimanous consent that left more undone than done. But, they created the office of the president, which was elected by the Congress, and held delegated powers. It created a judiciary, and it created a model of federal government whose role was to wage war or peace and conduct foreign policy. They wanted the states to have almost all the other powers.

It was a one chamber congress, and held all power. They appointed judges, they appointed the president, which was known as “President of United States in Congress Assembled”, who presided over the meetings. They did ban congressmen from being judges, so separation was started there,  but not by much.

Washington, Hamilton and others realized how weak the federal government was, and they had always wanted a strong one. So they convinced congress to give it another shot. Learning lessons from the failures of the Articles.

The states banded together in 1777 and then again in 1787 for mutual protection and defense. To do that, they gave up the ability to negotiate thier own treatries, and deals with foreign powers. They also gave up thier individual militaries, but kept the militias (which are our modern day state guards) in case the federal government got to greedy. They kept however, thier own identies and a lot of power over there territory, people, and institutions. Your marriage is state licensed, so is the drivers license, and most court cases are adjudicated under state law, even in federal court.

To ensure that they had one face to present to the world they revamped the presidents role. One of the biggest changes from the articles of confederation to the constitution is the stronger executive, who is elected by the people, or so we think.

The president is choosen by the states. He is not, as commonly thought, chosen by the people. The president doesnt even really serve the people. Lets examine how he was intended to be elected, then we will move into his powers and limitations.

The electors that vote for the president are chosen in what ever manner the state, key, state, determines. Which means they could have the governor appoint the electors, or the legislature pick them with no oversight. Most of the states did allow direct election of the electors by districts, but not all, and no state was required to.

Now the voting population was also much smaller. There are a lot that could be said about how we have expanded it to everyone (not convicted of a felony or mentally incompetent) can vote, but I am taking a constructionist look at the intentions in 1787. The states determined the qualifications and most determined that white land owners were the voters. This makes some sense, if you were a land owner, you were middle class, and most likely had time to discuss the issues of the day and read the paper. This would make you an informed person who could make an informed choice. If you did not own land, you were most likely working in a factory or the fields and would have much less free time. So, in a way, this made sense. Also, the secret ballot was not a thing yet, did not come into being until 1890.

So, the voters of the states, elect the electors (or the legistures/governors that will appoint the electors) that will elect the president. Now there are very very few qualifications to be president. You have to be over 35, live in the US for at least 14 years, and be a citizen by birth. (Supreme court has ruled this includes babies born to American citizens overseas who apply correctly). But the founders put a very specific clause into the voting procedures, they cast a ballot for two persons (later amended to one for president and one for vice president)  “one of whom shall not be an inhabitant of the same state with themselves”.

For example, A ticket with Virginians as both president and vice president would make the electors of Virginia vote for someone else for one of those votes. That seems a little odd if it was to represent all of Americans.

Hence why he represents the states. The Consitution empowers him to be the single point of contact (forbidding contact in a legal sense to the states by a foreign power), for all foreign policy decisions. It also makes him the commander in chief of the armed forces, that would defend all the states. He is also in charge of executing the laws passed by the national government fairly across all states, superseding the laws of the states. The founders also made sure that for a law to be passed, not only the people via the reps, but also the states via the senate, would have to agree. If the president, who represents the majority of the states agreed, its a law, if not, then a super majority of both the people and the states override the veto, enforcing both the states and peoples will. The constitution also requires that he let the congress know what’s going on from time to time, and what policies he’d like to see. Since he’s representing the majority of the states, that shouldn’t be far off from what the senate wants or what the reps want.

As for the role of the vice president, he was elected in the same election as the president and was the runner up. The idea may have been that the vice president received the second most votes, so there for is the “2nd choice” for president, but I have a theory as an addition. The vice-president presides over the senate, the chamber that represents the states. The vice-president also may cast a vote only in a tie, which, because every state has two senators, is always an option. In addition, a senator who is sent to the senate before the current president/vice-president are in office, may still be in the chamber for his entire term, the vice-president, may have been an attempt at allowing a minority, all be it, a small one, to block something.

As an example, the election put a Federalist into the white house, but a member of a different party as vice-president, since he received the next highest votes. In that same election year, the senate is now split 50/50, due to changes in the appointing legislatures of the states. Since the vice-president has the tie breaking vote he can swing the senate toward his parties agenda, when the senate is split. Adding yet another place the states can swing the power, since the senate is required for laws to be passed, and since the vice-president is elected by the states in the minority, or at least less popularity, it allows the minority to have a small flip if the senate is split. With the advent of the ticket system, this is no longer the case, but it is an interesting theory as the way it could of been intended.

Also, the advice and consent clause was very key to making sure the states keep a check on the president. Article 2, section 2, clause 2, says that the senate must be consulted and approve of “ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law”, it also allows them to delegate inferior (lower) officers to the President alone, or in heads of departments (secretaries). The law currently has down to under secretaries and all federal judges as needing senate confirmation, so the president can propose a Californian to be a judge in Wyoming, but the senator from Wyoming may put a stop to it.

So, the president can’t actually appoint anyone who has a lot of power or a job for life without a majority of the states (who appointed the senators) agreeing with it.

The electoral college was never intended to ensure that president represents the will of the voters, it was intended to represent the will of majority of states. The comprise was tying the electoral votes of each state with the number of reps and senators. So, each state, even Wyoming does not have enough people to be its own house district, gets 3, making sure that even though it has 70x less population than California, it only has 20x less votes in the electoral congress. This situation would not have been designed if the founders did not intend the states to be the ones the president represents.

The President, as was in the articles of confederation, is supposed to represent and be subordinate to the states. Not the people, the states as a whole.

I believe the role has changed from its intention in 1787. The Constitution has changed to allow for everyone over 18 to vote, it has changed to allow for direct election of senators, and it has changed to add term limits and clarify the succession. Which, was enacted by congress via statute, putting themselves (speaker #2 and senate pro tem #3) right behind the VP. I think it is time to re-examine if the electoral college really does represent what the president and vice-president represent. I feel it doesn’t.

The floor is open.

Topics

Here is a list of topics I am looking to write about, in no particular order:

Abortion: Pro-Life vs Pro-life (but I do not have the right to enforce that on others)

Electoral College: Why it exists and why it does not makes sense anymore

Republicans….what went wrong (How McCain became an outlyer and Ted Cruz became the main stream)

Environment: Big Business over keeping our planet livable

GMOs: Why they aren’t what you think they are
GMOs: Why they might be the only thing feeding the world

Racism: It was buried, now its not

Fake News: Conformation Bias at its finest

Fact Checks: No One Cares anymore

Healthcare: Right or wrong…we all need it

Cheeto-In-Chief: Why He is his policies just do not matter that much

….there will be more….

Contact me if you would like to write or contribute