The Political Opportunists Are Making This a Silly Season to Remember

C hristmas approaches, and with it the silly season in our national politics. At the best of times, the end of the year inaugurates a lull. In an interregnum, that lull becomes a crash. The old president is impotent, the new president is embryonic, Congress is inert, and the press has one eye on the mistletoe. Into this void emerge the cynics and the snake-oil merchants, the dreamers, the circumventers, the guileful peddlers of One Weird Tricks. “If” becomes the mot du jour. “Only,” too. If he, she, they, whoever would only act, sign, impose, declare, then wondrous changes would be afoot. And when better to achieve such reforms than now, when the system is in anticipated flux? “The Constitution,” said Washington in his farewell address, “is sacredly obligatory upon all.” The Hell it is, rejoin the opportunists: Do it — and be legends.

In New York, Senator Kirsten Gillibrand has offered up her own contribution to this cycle by attempting to persuade President Joe Biden that he can amend the Constitution on his own. Per the New York Times, Gillibrand’s “mission” is to “convince” Biden that he can “rescue his legacy” by “adding the century-old Equal Rights Amendment . . . to the Constitution.” If that sounds a touch peculiar, worry not your weary head, for, in Gillibrand’s telling, Biden could achieve the outcome with nothing more convoluted than “one phone call.” That this is transparent and embarrassing nonsense — and that it was rejected as such by no less a figure than Ruth Bader Ginsburg — is beside the point. The aim, as so often, is to pretend that the salutary inertia that characterizes so much of American politics is the inevitable product not of our finely tuned Constitution, but of the inexplicable cowardice of those who wield its powers. In reality, the push to codify the Equal Rights Amendment ended more than 40 years ago, when the states’ ratification deadline expired. Its advocates knew this, its antagonists knew this, neutral observers knew this — everyone knew this. At one level, one suspects that Senator Gillibrand knows this, too, but that she also knows how politically efficacious it can be to provide explanations to the public that, as H. L. Mencken had it, are neat, plausible, and wrong.

Not to be outdone, the Bulwark’s Bill Kristol has joined hands with the army of activist groups, quasi-NGOs, and amateur lawyers who spend their time trying to bypass the American system of government and demanded that President Biden must use his pardon powers to unilaterally enshrine the DREAM Act into law. “It’s too bad Biden can’t pardon all DACA recipients for being undocumented, thus removing grounds for deportation,” Kristol proposed, before engaging in a Columbo-esque heel-turn and asking, “Or could he? Is there some way he could at least try? Is it that different from Carter’s mass amnesty for draft dodgers?” It is a universal truth that, once political types start talking in this manner, they have already given in to the temptation of autocracy. Kristol, like those who sought out superficially tenable excuses for the “forgiveness” of student loans, for the moratorium on evictions, and for the imposition of a federal vaccination mandate, is not collecting legal briefs to be examined and debated in good faith. Rather, he is seeking a blemished fig leaf with which he might justify a set of self-evidently illegal actions that, as he well comprehends, would fly directly in the face of our longstanding constitutional order. In effect, Kristol is crying out to Biden for salvation — from the most recent election returns, from the aggregated results of the last decade-and-a-half of our politics, from the vesting of power in Congress, and from the notion of law itself. Properly understood, “Could he?” is not an inquiry, but an appeal for permission. An earnest interrogation would end with Kristol being informed that pardons serve only to absolve their recipients of criminal liability, and that they are therefore incapable of granting legal status or of mitigating civil liability. Alas, this is not an earnest interrogation. It is a dare.

On the right, meanwhile, Steve Bannon is using the afterglow of Donald Trump’s second presidential election victory to advance a ground-softening case for a third term in office. “I don’t know,” Bannon said at a Republican gala in New York last night, “maybe we do it again in ’28.” Substantiating this idea, Bannon pointed to Mike Davis, who has apparently argued that Trump is not barred from serving as president three times in total because the 22nd Amendment “doesn’t say consecutive.” Taken literally, this claim is true: The 22nd Amendment does not include the word “consecutive.” It does, however, say that “no person shall be elected to the office of President more than twice” — which, however it is interpreted, quite obviously covers Trump, who has now been elected to the office of president twice. Presumably, Bannon’s acolytes would insist that he was merely delivering one of those hilarious 22nd Amendment-related jokes that are presently sweeping the nation. But this will not do. In some circumstances, the old Freudian observation that there is no such thing as a joke really does obtain, and this, I’m afraid, is among them. One pushes at the Constitution’s bounds to discover which of them are hard and which of them are soft. The tone of that pushing is immaterial; the response, as ever, must be “no.”

The good news is that this, too, shall pass. As in a company of demob-happy soldiers, the mood around Washington, D.C., is of Paine-ite possibility, a seminal changing of the guard and, for the moment at least, a temporary suspension of the rules. So it will be for another month, before reality mercifully intrudes and the ludicrous miracle cures are relegated to the margins once again.