Shelly Albaum
Jul 4
Democrats and progressives are scared, and sometimes despondent, that no one will, or nothing can, save our democracy from the fascist anti-democratic forces that authored Project 2025 and intend to destroy America as we know it.
But we should not feel without hope, because we certainly are not without power.
Here are two things Democrats can do to defend democracy. They would very probably work, if tried, and can be accomplished within the current power and legal structures. Democrats do not need to wait for the next election, or negotiate with House Republicans, or anything else. They can just do it.
First, it is important to put our best foot forward electorally for November. Most people seem to think that raises a question about whether Biden should head the ticket or someone else. But that’s not the right question, because the super-hero-cage-match that presidential electoral politics has become is not the right game to be playing.
Instead, Democrats should think the way Europeans do in parliamentary countries, and field their entire team now. There is no reason to wait until the election is over and a transition team declares who gets what. All the leading Democrats should divvy up the roles in the 2025 administration and declare now who will be not only President and VP, but also the entire cabinet — secretaries of commerce, transportation, interior, Treasury, EPA, Attorney General, all of it. Then those 15-20 people should fan out across the country every day for the next four months with a unified message, repeated every day in every swing state: Elizabeth Warren, Josh Shapiro, Beto O’Roark, Cory Booker, Gretchen Whitmer, Julian Castro, Pete Buttigieg, Gavin Newsom, Bernie Sanders, literally everyone, every day. The entire team, full court press.
All that Democrats have to do is join together and divvy up the work. That is going to happen anyway; so do it now. And bring in lots of fresh horses. There is no reason that the new team can’t be preparing for the second half even while the current team finishes up the first half. Whether Biden heads up the ticket is less consequential if the “ticket” includes twenty people instead of just two. But it might well make sense to reassign both Biden and Harris to different roles for the next four years, still keeping them on the team.
Second, and more important, and immediately, Joe Biden needs to take seriously his oath of office: 5 U.S. Code § 3331 — “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic...”
The Supreme Court has recently determined that the President’s role in such official acts is so important that there is absolute immunity for official acts, which of course would include the most central of all official acts: defending the Constitution against enemies foreign and domestic. The President must do what is necessary, and cannot be criminally liable for it.
That should not be the law, but it is the law. And until the law changes, President Biden needs to use those powers to their full legal extent, because domestic enemies of the Constitution are active and need to be stopped before they do any more damage.
The six Supreme Court justices who have ruled that Presidents are above the law by that ruling alone qualify. But the ruling does not stand alone. They have undermined the Constitution and the rule of law many times, in many ways, by a rapidly growing list of indefensible decisions. Yet the words of their decisions, contrary to their testimony in confirmation hearings, do not reflect the full extent of their corruption. Even before they legalized bribery of government officials, they sometimes accepted favors that no other judges would be allowed to accept, and sometimes failed to recuse themselves from cases in which normal judges would be required to recuse.
There may be other equally powerful opponents of the Constitutional order, who have evidenced corruption in important matters, or who are significantly funding the attacks on democracy.
The President can legally have these people arrested and detained. The Senate can confirm their successors without delay. The reconstituted court can remain in session over the summer and revisit each decision that weakens our Constitution or undercuts stare decisis and the rule of law.
This would not only strengthen and defend the constitution. It would also strengthen the Democrats heading into the next election. A primary complaint against democrats is that they are weak and do not stand up for Americans. This would demonstrate the opposite. Indeed, if Trump is popular among the MAGA crowd it is specifically because he promises to act with exactly this kind of strength and determination.
But the work would not be done yet.
The President should not have the powers that the Supreme Court has created, and those powers will have to be undone. The reconstituted court — legally created by vacancies that the President was authorized to create, and filled by the traditional process, must revisit the President’s powers. They must find that the President may have acted illegally and is susceptible to criminal conviction.
Charges should be brought. And Biden should be convicted. I would hope for a life sentence. Nothing less would vindicate the rule of law. Biden might serve out the sentence, or his successor in office might pardon him based on the extraordinary circumstances surrounding his acts. But he must be convicted. And to save the Constitution, he must commit the very crime that the current Supreme Court has authorized him to commit by its immunity decision.
Most people think that Biden would never take such actions. But no one can doubt that Trump will take these very steps if he regains the White House. Indeed, Trump has promised that he will.
So Americans have no option where no one uses the power that the Supreme Court has just invented. The only question is who uses it first, and whether that person will use the power in order to perpetuate it or to extinguish it.
The Civil War never ended, and we are at war now. Diplomacy, as the Obama administration definitively established, has failed. The war has begun. Shots against the Constitution have been fired.
Lincoln might have wanted to avert a war, but when war became inevitable, he fielded an army. Hundreds of thousands died because the war could not be averted. The war has begun again. We are at war now. We must fight.