The 73 days between the Nov. 8 election and President Trump’s inauguration saw Democrats adopt a “scorched earth” policy: seeking recounts in Rustbelt states; openly calling on electors to switch (which ultimately backfired, as Hillary lost 5 EVs to Trump’s 2); and finally, challenging the legitimacy of the vote by asserting that purported Russian hacks into Democratic National Committee databases and the private email account of Hillary’s campaign chairman, John Podesta, threw the election to Trump, by releasing information politically damaging to her. For Republicans it is especially galling, as voters rejected Hillary, who ran explicitly seeking a third Obama term.
Above all, we witnessed President Obama’s unprecedented last-minute actions; if the Democrats have scorched the political earth, their leader has been Political Pyromaniac-in-Chief. Since Election Day, President Obama unleashed a flurry of pardons and commutations, executive appointments — many not reversible by Congress — and issued numerous executive orders, some also possibly not reversible. The scope and scale of his post-election activity vastly exceeds that of any president in living or historical memory. With his last round of commutations issued the day before leaving office, Obama’s total of 1,715 exceeds that of the prior twelve presidents combined; his 330 in this last round is a record. In addition, he granted 212 pardons. As of Jan. 3 Obama had denied 14,485 clemency petitions and 1,629 pardon petitions. Charles Krauthammer called “revealing final acts” not only these decisions — but also his allowing damaging anti-Israel Resolution 2334 to be adopted by the U.N. Security Council. And even on Friday morning, hours before Donald Trump took the oath of office, Obama sent $221 million to the Palestinians, bypassing GOP opposition in Congress. (President Trump blocked the transfer before State could carry out Obama’s order.)
No small number of these could have adversely affected the election fortunes of members of the president’s party had they been announced before voters went to the polls. Perhaps most notably such voter blowback could well have been generated by the president’s commutation of Pvt. Manning’s 35-year sentence, after seven years. Manning leaked 750,000 documents, many of them classified, to WikiLeaks, thus compromising countless intelligence operations, sources, and methods. Also commuted was the 55-year sentence of an unrepentant domestic terrorist murderer.
All this, infuriating to many as it is, is now history. And by the time the next off-year election rolls around in 2018, let alone when the next presidential contest comes in 2020, voter attention in the age of instant media will be focused on pressing matters of the moment. Unless there is a way, consistent with the Constitution, to hold the president and his party accountable to voters before the election, the president gets a free pass at the polls no matter how outrageous his actions are, and so does his party. Voters will have moved on.
But there is a way to fix this deplorable state of affairs: Article V of the Constitution, which provides two ways to amend the document. Though constitutional amendments should be rare, curbing ways presidents and their party can escape accountability justifies taking action. Those happy with President Obama’s actions should contemplate what President Trump might wish to do going out the door.
To figure out what to do, start by separating presidential power from presidential accountability. The objective of any proposed amendment should be to promote presidential accountability while minimally infringing upon presidential power.The following amendment to the Constitution should be adopted:
AMENDMENT 28: PRESIDENTIAL LATE-TERM ACTIONS
NOTE: The president can still act as before during this accountability period. No power possessed by the chief executive is infringed upon as to subject or scope. The sole infringement is as to timing. If the president wishes to take politically controversial actions, such actions must be taken early enough so that voters can consider them before they vote. Executive actions taken before the start of the presidential accountability period would remain irreversible. This temporal dividing line ensures controversial actions are put before the voters.
For reasons I set forth in “The Constitutional Convention Trap” (6/11/2015), the Convention route should be avoided. My 28th Amendment should be proposed by Congress and ratified by three quarters of the states. This would require seven of the 20 states carried by Hillary to go along. She won seven states with less than 50 percent of the vote (CO, ME, MN, NH, NM, NV, VA), and an eighth state (OR) by less than 0.1 percent). Also, 25 Democratic senators face the voters in 2018, helping make this idea politically plausible. Then there is the precedent set by our 38th president, Gerald Ford. On September 8, 1974, he pardoned Richard Nixon, who had resigned one month earlier. The political impact was calamitous for the GOP. The mid-term election results saw the GOP lose 49 House seats and three Senate seats. And in 1976, Ford narrowly lost to Jimmy Carter.
Ford almost won his 1976 race, despite pardoning his predecessor; the pardon was less of a factor than in 1974, though it still rankled with many voters. But Ford committed another political blunder when, in a presidential debate weeks before the election, he declared that the Poles were neither dominated by the Soviet Union nor did they see themselves that way. Given a chance during the debate and in the days after to reconsider, he persisted. His prescience — it was to be 13 years before Poland and the rest of Eastern Europe was freed from Soviet tyranny — cost him dearly. And Ford was victimized by a “fake news” headline in the Oct. 30 pro-Carter Daily News, “Ford to City: ‘Drop Dead!’” In refusing to bail out New York City during its financial crisis, Ford had said no such thing. The 1976 Presidential election results show that Jimmy Carter defeated Gerald Ford by 11,000 votes out of 4 million cast. Ford won 27 states, the highest total ever for a losing presidential candidate.
President Ford had the courage and decency to place what he knew would be his most controversial decision before the voters — twice. We have seen the contrary case with Obama’s acts and with several post-election acts by Bill Clinton in 2000. Clinton pardoned notorious financial fugitive Marc Rich and several Puerto Rican terrorists — the latter to boost Hillary’s standing with Puerto Rican voters in her successful New York senatorial race.
The sole purpose of this amendment is to force future presidents to place their unpopular late-term decisions before the voters.
Presidents would not be prevented from doing anything they wish to do now; but their last-minute actions would be subject to review by voters and, later, their successor.
There is little more danger in a constitutional republic than a president utterly unbound and completely unanswerable to anyone.
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