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We’re in an Extraconstitutional Limbo

The president’s grasp of the reins of executive power has slipped. Other elected officials must bring us back within the confines of the constitutional order.
January 11, 2021
We’re in an Extraconstitutional Limbo
WASHINGTON, DC - JANUARY 06: Members of the National Guard and the Washington D.C. police stand guard to keep demonstrators away from the U.S. Capitol on January 06, 2021 in Washington, DC. A pro-Trump mob stormed the Capitol earlier, breaking windows and clashing with police officers. Trump supporters gathered in the nation's capital to protest the ratification of President-elect Joe Biden's Electoral College victory over President Donald Trump in the 2020 election. (Samuel Corum / Getty)

Last Wednesday Vice President Mike Pence effectively took over the executive function of the U.S. government. Insurrectionists had charged the Capitol, just as the election was being confirmed inside. For reasons that remain unclear, but which matter enormously and will surely crystalize over time, security did not hold, and someone had to send in backup. According to press reports, and Maryland Governor Larry Hogan, and anyone who was watching events unfold at home, there was some sort of crisis and failure in the hierarchy of command that lasted more than an hour; it appears that President Donald Trump would not take the actions he so plainly needed to. And so Vice President Pence, in consultation with other leaders, did. In order to protect the Capitol, he sidestepped the sitting chief executive—who had proven, not for the first time but in the most flagrant manner imaginable, that he could not be trusted to defend our constitutional forms.

To put it in the least incendiary terms: President Trump failed to take the necessary actions when a violent mob attacked and seized the Capitol. He failed while it was full of our elected representatives. He did so while they were doing the most basic, essential democratic work. Whether or not criminal charges would hold, Trump also primed his supporters for such an attack.

And while there were some oddballs in cosplay strolling through those halls, there was also very real violence and terror. Dozens of police were injured. Five people are now dead. All of this was predictable and, indeed, predicted. But whatever happened, and whatever the causes, we know one thing with perfect clarity: The president did not do his job.

In the days since the violent attack, Trump’s authority has eroded still further. Two cabinet members and several White House staffers have resigned. There are reports that House Speaker Nancy Pelosi has “gotten assurances there are safeguards in place in the event President Trump wants to launch a nuclear weapon”; she shouldn’t have needed to do this, and the fact that she did raises all kinds of obvious questions about the relationship between civilian and military power. And now, of course, Trump has officially been banned from Twitter, “due to the risk of further incitement of violence”; this is another serious (and rightful) affront to his legitimacy, no matter that it was done by a private company.

So, however we look at it, and however much we wish things were otherwise, we are currently in the thick of a constitutional crisis. The Constitution is the set of laws through which we allocate, balance, and transfer power in the United States. Laws and procedures are preferable to inchoate struggle, violence, and insurrection. Right now, however, the Constitution is not fully operative, because the person occupying the most important office in the system, Donald Trump, does not have the authority he needs to execute the duties of the office. The person who was elected to lead the executive has lost so much legitimacy that it is unclear who holds the reins.

Honesty about the fact that we are in a state of extraconstitutional limbo is appropriate and necessary right now, partly because political truths are in such short supply, partly because there is no going back and events might require a federal response with clarity about the chain of command, and partly because it helps to shine a light on the duty other leaders have to restore constitutional order.

With a view to achieving greater clarity, here are four things that everyone needs to understand: First, Pence and the other leaders involved here appear to have taken us beyond the strict parameters of the Constitution. Second, the president has, as a matter of fact but not yet of law, lost legitimacy and authority. Third, this is a very precarious situation, but it could be worse. Fourth, our elected representatives have the authority and duty to bring us back within the confines of constitutional order.

On the first point: We need to be honest about the fact that, when our democratic representatives sidestep executive authority like this, even to protect us and the Constitution, they step outside of constitutional bounds and seize some kind of emergency powers. This does not make their actions illegal or unconstitutional, but it does make them extraconstitutional. Perhaps the closest analogue here is when Vice President Dick Cheney appears to have acted decisively to give the shootdown order for the United Airlines Flight 93 on September 11, 2001. According to the 9/11 Commission Report (see pages 40-41), confusion about the chain of authority was cleared up within two minutes. By contrast, during last week’s storming of the Capitol, there was no immediate, decisive action by executive branch authorities. And White House Press Secretary’s Kayleigh McEnany’s tweet is not enough to clear the air. So, to be as clear as possible: Pence and the other leaders involved here did—and are doing—the right thing, because immediate action was needed on Wednesday (and because Trump more generally poses a grave danger). But they have brought us into an extraconstitutional limbo.

Second, the actions of leaders like Pelosi and Pence demonstrate that the president has, as a matter of fact, lost a good deal of his authority. The issue is not just about whether Trump is capable of fulfilling his duties, or whether he is impeachable. The fact is that on Wednesday, and since Wednesday, Vice President Pence and others have demonstrated that they no longer trust him, in a pretty stark and public way. Others have made the same point more subtly: “[M]any Republican lawmakers are already employing [what] one GOP strategist termed . . . the ‘wink, wink, nod, nod’ strategy, by which lawmakers simply treat VP Mike Pence as president,” reports Politico, while, according to the Washington Post, Senate Majority Leader Mitch McConnell “has told fellow senators and other confidants that he does not plan to speak with Trump again.” Again, I think that was and is the right thing to do, and I imagine history will not judge them harshly for these actions. But in the days ahead, they don’t get to just dial those choices back, or plausibly pretend this isn’t happening. If Trump wasn’t fit for the job on Wednesday, when it really mattered, then he isn’t going to be better today. The train has left the station.

Third, as things stand, conditions remain awfully ambiguous and precarious. The question of who actually holds power—the most raw power in the world—is far too unsettled. What is actually going on with the nuclear codes? What will happen if there are more riots and unrest, or more attacks against our core institutions, or on our representatives? Will someone be ready with backup if law enforcement fails? What if there is a natural disaster, or an event abroad that requires a swift response? These are hard questions at the best of times. As we all witnessed on Wednesday, uncertainty in the chain of command significantly increases the potential for chaos and catastrophe.

So, fourth, as both a constitutional and a prudential matter, Trump must be removed from office as quickly as possible—via impeachment and conviction or the Twenty-fifth Amendment. Speaker Pelosi has made clear this is what she intends. There is no excuse for anyone who does not work to remove him. Pence and other leaders have already acted on the premise that the president is “unable to discharge the powers and duties of his office.” Now is the time to formalize these realities so as to settle any constitutional ambiguity for the days that remain before President-elect Biden’s inauguration.

Others have written powerfully about all the good reasons why Trump can and should be ousted, and emergency powers invoked. Among other things, he should not have the authority to pardon criminals who participated in the Capitol’s siege (let alone himself). My point here is different: He has already lost a good share of his authority, and so, like it or not, we are in the thick of a constitutional crisis. Our leaders have the tools, and the responsibility, to change that, by starting the impeachment process, or invoking the Twenty-fifth Amendment, and by making plain to the American people, on every platform available, why it is necessary and constitutional to do so. They need to make it clear—through the formal processes available, and for the sake of both the current crisis and the historical record—where executive authority actually resides, and why it is no longer with Trump. Republicans in Congress and conservatives in the media also bear a particular responsibility for explaining, on Fox News and talk radio and everywhere else, why it is better to follow this overtly constitutional course as opposed to the present ambiguous one.

Arguably, our current state of extraconstitutional limbo is not a cause for panic, since it is better to be in a constitutional crisis than to have Donald Trump clearly in charge. But we would be far better off with an unambiguously constitutional formalization of his removal from power. That path has the benefit of affirming the importance of constitutional limits and of reifying our democratic commitments at a moment of awful vulnerability. Impeachment or removal would also align with the dual truths of what we have just witnessed: that Trump has shown himself clearly unable to defend the Constitution (and hence the American people, as a “We the People”), and that, despite the office he holds de jure, he is no longer de facto fully authorized with the powers required to do so.

Regardless of whether it succeeds or fails, swift, lawful, constitutional action is a whole lot better than inaction and constitutional ambiguity. Removing the president via constitutional means is more transparent about the severity of what has transpired. It sets a better example for the future. It makes us safer in the ways that matter most, by protecting the constitutional order rather than coddling Trump’s feelings or cowering before threats of further violence. And if it is executed with some genuine Republican support, it could be the first step towards renewed civic trust.

Any actions that can bring the deeds of those in power into a closer alignment with Americans’ shared constitutional values should be welcomed. Such actions are important pledges of hope towards our shared institutions, and the necessary foundation of a better future. At this time of dreadful sadness and uncertainty, nothing matters more.

Laura K. Field

Laura K. Field is a senior fellow at the Niskanen Center and a scholar in residence at American University. Twitter: @lkatfield.