Addressing Major [C]onstitutional Issues

It’s time to start planning

In the first year after a new political party takes over the White House, it makes extraordinary efforts to push forward its agenda and the interests of its supporters... “gettin’ while the gettin’ is good.” Especially in recent decades, with many instances of divided control over the White House, Senate, and House, each new President and their party often propose—and succeed in later getting enacted—some of their most significant domestic policy changes during that first year: tax cuts (Reagan, 1981), budget reform (Clinton, 1993), tax cuts (W. Bush, 2001), Obamacare and the “Stimulus Act” (Obama, 2009), tax cuts (Trump 45, 2017), American Rescue Plan and Inflation Reduction Act (Biden, 2021), and tax cuts & extraordinary executive actions (Trump 47, 2025). The victorious party’s demand that “it’s now our turn,” the public’s desire for “something different,” and the precedent set by past presidential turnovers make the choices made that first year particularly crucial.

Let’s look ahead to early 2029. If the Democrats regain control of the White House, what should their agenda be? Is it a continuation of the Biden agenda? I don’t think so; that didn’t work out very well. How about expanding healthcare and Social Security, the main focus, at least if you look at the numbers, for every Democratic President since World War II? Unfortunately, as early as 2032, Social Security and Medicare will be unable to pay beneficiaries the same amount they received in prior years. Therefore, simply adding benefits beyond current unsustainable obligations isn’t an option. Even if Democrats want to avoid addressing those required tax increases or benefit cuts, for the first time since 1983, they can’t.

At least, attention to those trust fund problems has already been set in motion. I suggest that the most pressing issues our elected officials should address by 2029, if not before, are not just these budget issues but all the many other challenges that are constitutional (“con”- together; “statuere” – cause to stand) in the sense that they require procedures that future White Houses and Congresses could not easily breach. I place a bracket around the letter “c” because of my own uncertainty about what each reform requires, such as a Constitutional amendment, legislation, a different legislative process, or simply stronger social or cultural norms under which we agree to abide.

After being knocked off the wall like Humpty Dumpty, with their leaders often violating laws, standards, and protocols maintained for decades, departments and agencies such as Justice, FBI, Health and Human Services, Immigration and Customs Enforcement, and the Agency for International Development can’t be put back together the same way. They, too, need some way to be reconstituted with a “regular order” that both the public and their employees can trust.

Solutions that future Presidents can easily overturn are not enough. Indeed, the republic faces a major risk that many Republicans will see whatever future actions Democrats take as merely another cycle of retribution, which then must be met with yet another cycle of retribution, and so on.

You can already see how this problem can multiply by watching Democrats in states like New York and Virginia trying to emulate Republicans in states like Texas by designing complex patterns of representation. These efforts effectively take democratic representation away from large portions of their populations, as when a 45 percent minority in a state gets only 15 percent of that state’s Congressional representatives.

Long-term constitutional reforms almost always need bipartisan support. Still, new Presidents rarely choose to limit their own power and the benefits they can give to themselves and their friends when they take office. But we can see the long-term effects. For instance, disregarding long-term consequences, they increasingly centralized authority and controlled the flow of information from the Executive Branch within the White House, laying the foundation for many of today’s excesses.

So many standards built up over decades have been flaunted that it’s hard to know where to begin. Here are just a few areas that need to be tackled:

• Privacy protections for government-collected information on individuals where no prosecution is considered justified.

• Limits on and penalties for illegal actions that threaten, weaken, and harm“enemies” regardless of later court declarations of illegality.

• The excessive number and often the lack of qualification of political appointees

• Civil service protections and reforms.

• Enforcement of Constitutional limits on presidential emoluments

• The President’s authority to issue pardons.

• Apportionment of Congressional districts within the states, at least in years other than required under the once-a-decade Constitutional mandate.

• Application of laws impartially across state and other jurisdictional boundaries, not based on retribution for how each state or locality previously voted.

• Allowance for individuals to pursue civil suits against a political appointee who lies about them or otherwise violates their rights.

• The maintenance of bipartisan and nonpartisan boards and offices.

• Budget practices that restrict how much current officials can predetermine what future voters and their elected representatives must do.

• Trustworthiness of America’s treaties and commitments.

Recognizing issues that need attention is, in many ways, the easy part; proposing a solution that doesn’t create more problems than it solves is much harder. For example, see this debate about some proposals to limit the President’s power to grant pardons.

Chaos reigns now. In such primal states, it’s difficult to predict how evolution will unfold. I certainly don’t have, nor do I trust anyone else to have, more than a glimpse or two of what future fair and efficient processes might entail. For now, I only assert that we must not wait on the political dynamics at the start of a new Administration to begin figuring out what the best constitutional approaches should be.