The Senate debacle demands other means of checking the president

The Republican Senate’s disdain for its constitutional obligations and the plain meaning and intent of the impeachment clause raises legitimate and serious concerns about the unchecked power of the presidency. We cannot rely simply on the chance that the next president who abuses his powers will be confronted by a Congress controlled by the other party, and thereby inclined to take impeachment seriously.

Three avenues provide a way to rebalance our system of separation of powers. Should a Democratic president and a Democratic Senate be elected, one hopes that they will agree on a series of changes to fortify limits on presidential overreach and misconduct.

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The first concerns tools for congressional oversight. Statutory penalties for contempt of Congress with swift review by the Court of Appeals for the District of Columbia Circuit, tightening time limits for responding to Freedom of Information Act requests and enacting penalties for abuse, and reinforcement of whistleblower protections (and penalties for outing and retaliating against whistleblowers) must be considered. We need criminal statutes expressly barring solicitation of information from a foreign government for use in an election. All presidents and vice presidents must release their tax returns and place their business holdings in a blind trust.

Congress also must reclaim its powers. That entails repealing “emergency powers,” returning tariff power to Congress, requiring “acting” Cabinet secretaries be Senate-confirmed officials in the same department and limiting their tenure to 60 days, beefing up the War Powers Act and limiting authorizations for use of force to three years with the option for renewal.

Finally, the president must withdraw the Office of Legal Counsel memo preventing indictment of a sitting president (given that the impeachment power is defunct), enact a firewall to prevent political weaponization of the Justice Department and enhance the powers of inspectors general (e.g., allowing the Justice Department IG to investigate the attorney general) and the Office of Government Ethics. Contrary to statements made by Democratic presidential candidates, the number and scope of policy-based executive orders must be curtailed.

Constraint on the unilateral powers of the president is long overdue. As in the post-Watergate years, the potential for executive branch abuse should serve as impetus for significant limits on executive power. It will be tempting for the next president to simply imitate President Trump’s imperial conduct to speed through an agenda that undoes Trump policies. That would be a mistake. The perfect time to enact restraints on the president is when the president and the Congress are of the same party.

As for the embarrassing abdication by Senate Republicans of their oversight and impeachment obligations (and legislative sloth in doing virtually nothing other than ram through judges), the solution is simply to throw them out in the 2020 election and those that follow.

Executive branch reform is not a cure-all for everything that ails our political system, which also requires an infusion of direct democracy. Yes, it is high time to revisit the electoral college. (Democrats need to start winning statehouses to pass either an amendment or the National Popular Vote Interstate Compact, which requires electoral votes to go to the winner of the national popular vote.) Statehood for Washington, D.C., and Puerto Rico should be on the table. Automatic voter registration and enhanced access to voting are likewise essential. The tyranny of the minority — a white and largely rural minority — must come to an end.