America Is Nearing the End of Law

Trump’s allies are not making good-faith arguments within America’s legal system. Rather, this is a challenge to the legal system.

An illustration of a gavel with the Constitution text behind it.
Getty / The Atlantic

About the author: Robert Black is a writer and legal scholar living in Philadelphia.

Today, members of the House of Representatives and the Senate will meet in a special joint session for the final official stage of the 2020 presidential election: the counting of the electoral votes. In any remotely normal election, this moment would pass with little notice, a mere formality. But not so this year, because Donald Trump and his allies in Congress refuse to accept that he lost the election.

Led by Louie Gohmert of Texas in the House and Josh Hawley of Missouri in the Senate, a Trumpist faction has announced that they will challenge the electors from key swing states. They do not have the votes to prevail in either chamber of Congress, but no matter, for they say the sole constitutional authority to resolve these controversies rests with the vice president. If Trump, Gohmert, and Hawley have their way, Vice President Mike Pence will unilaterally throw out the Biden electors from these states, recognize the Trump electors instead, and declare that Trump has won the election.

Even if Pence cooperates, which he is unlikely to do, Trump’s scheme cannot ultimately succeed, legally speaking at least. But in refusing to accept the result of the election, Trump and his supporters have sent the country hurtling toward a scenario where the law has run out. In seeking to derail the orderly legal process for identifying the next president, they are announcing that they reject the legitimacy of any system that could allow Joe Biden to defeat Trump. In doing so, they are rejecting our Constitution and the system of democratic self-rule it creates. Little could be more dangerous.

Trump’s effort to contest Biden’s victory has always rested on preposterous legal arguments. Of late, as the question has shifted from what happened in the election itself to who has the authority to resolve that question, these legal claims have become even more prominent than Trump’s bevy of vote-fraud conspiracy theories. Prior to the certification of vote totals in each state, the Trump team based its main legal argument on a concurring Supreme Court opinion by Chief Justice William Rehnquist in Bush v. Gore. Rehnquist believed that the description of the Electoral College process in Article II, Section 1 of the Constitution, which gives the “Legislature” of each state the power to choose the “Manner” in which the state’s electors are chosen, meant that state courts could not alter a state’s election code in the name of the state constitution. Rehnquist’s theory is not controlling legal authority, as it has never been endorsed by a majority of the Court, but Trump’s lawyers and partisans seized on it as though it were law, using it to argue that the expansion of mail-in voting by the governors and sometimes the judiciary of many key swing states violated the federal Constitution—and therefore that mail-in ballots cast under the new rules should be thrown out.

Once the effort to prevent certification had failed, the Rehnquist theory mutated into a more aggressive variant: State legislatures could still decide by fiat to replace their slate of Biden electors with the Trump slate, using the unfounded claims of fraud as justification. In many of the relevant states, when the electors met to cast their votes on December 14 the rejected Trump electors held rival meetings in which they purported to be the true electors for their state and cast their supposed votes for Trump. (Never mind that in none of these states did the legislature actually act to supplant the Biden electors; it seems to be enough for Trump’s partisans that handfuls of legislators wanted to do this.) That, in turn, created the pretext for today’s drama.

So what happens now? The law provides a simple answer. Under the Electoral Count Act, both houses of Congress must agree in order to reject a state’s electoral votes—and the Democrats control the House of Representatives. Even if the two chambers disagree on whether to count the Biden electors or the rival Trump electors from these states—which is unlikely, as a number of Senate Republicans have expressly come out against Hawley’s move—the act asserts that the tie goes to the slate certified by the governor of each state, meaning the Biden electors. Any way you try to game it out, Trump can’t win. Indeed, that has been apparent since at least the election: However large a mess Trump and his friends try to make, they simply have no path to prevail under the law.

But there is one thing law cannot do, and that is command obedience to itself. Someone who does not recognize the law’s authority in the first place would not be moved by its demand that it be obeyed. And this, I think, is the correct light in which to view the newest, zaniest “legal theory” Trump and his partisans have come up with. They say the Electoral Count Act violates the Twelfth Amendment. They claim that when the amendment says that the “President of the Senate [i.e., the vice president] shall … open all the certificates and the [electoral] votes shall then be counted,” it means that the vice president has sole power and responsibility not only to count the votes but to decide which electors to include.

It is so very tempting to respond to this by merely saying that they are wrong—which they are! Clearly, unambiguously wrong as a matter of law. The text is not explicit that the vice president actually does the counting (as opposed to just opening the certificates), and for obvious structural reasons it would not make much sense to give the vice president, who will frequently be one of the contestants, sole power to declare the next president. (As many have been saying online, just imagine if someone had told Al Gore he had this power 20 years ago.) No good-faith technique of constitutional interpretation could possibly support this conclusion. That is why the Texas federal court in which Gohmert sued Pence, paradoxically seeking to compel him to ignore the Electoral Count Act, dismissed the case immediately, and why the Fifth Circuit dismissed Gohmert’s appeal on the very day it was filed, without even waiting to hear from the other side.

But we are not dealing with good-faith arguments operating within our existing legal system. We never have been, throughout this whole post-election fight. Rather, we are dealing with a challenge to our existing legal system. When Hawley announced that he would challenge the election results, many commentators said that Hawley, a Yale-educated lawyer, “knew better.” As one Republican official apparently put it, Hawley is “not some moron like Louie Gohmert.”

But I don’t think that is quite right. Presumably Hawley does know that the specific “factual” claims of election fraud Trump has advanced are baseless. (Whether Trump knows this is less clear.) But Hawley apparently believes that Trump should remain in office, as, of course, does Trump. For Hawley, as for Trump, the highest law is that only Republicans may legitimately hold power. The facts of who voted for whom are irrelevant. And all other legal argument and authority must bend toward that higher purpose. This is why the Trumpists’ behavior in this post-election period has had such a mindless predictability. At every juncture, they have said only what they are compelled to say in order to continue believing that Trump should still be president, with no thought for how the principles they are invoking might apply in any other situation.

One thing that has fascinated me is how often Trump’s supporters have claimed that in overturning the democratically and legally legitimate outcome of this election they are fighting for the Constitution. These invocations might well be sincere, but they refer to a very different Constitution from the one most of us recognize. When we unpack what it means for only Republicans to be allowed to hold power, we can see the nature of their version of the Constitution. Parties consist not only of their elected officials but of their coalition of voters as well, and the Republican coalition is overwhelmingly white, in stark contrast to the diverse Democratic coalition. As Adam Serwer has noted, Trump’s definition of “voter fraud” is just Black people voting. The fight to keep Trump in office is effectively a fight to privilege the white Republican voter base over the diverse Democratic one in perpetuity, replacing American democracy with a one-party state in the process.

The Constitution that Trump and Hawley and Gohmert are fighting for, in other words, is a white-supremacist one—you might even say a fascist one. And the struggle between their Constitution and ours cannot be resolved by law, as each vision claims to be itself the supreme law. Suppose, for instance, that Pence were to do what Trump wants and declare him the winner. Majorities in both houses of Congress would vote to overrule that decision, but so what? According to Trump, Congress has no power here. And even if Pence won’t play along, Trump will likely come up with some new excuse for continuing to claim victory.

There is nothing Trump or his supporters can do to stop Biden from becoming the next president of the United States, in law and in fact. But there might not be anything the rest of the country can do to stop American society from fracturing as a result, with many—who knows how many?—declaring their allegiance to Trump and to the authoritarian regime he is working to bring into existence.