Move the Justice Department Under the Federal Judiciary
In many Western democracies, the police function is the province of national courts, not the chief executive. In the American system, the concentration of massive, coercive, and lethal power under the presidency in the form of federal law enforcement and the military is an invitation for dictatorial rule by a committed authoritarian president. Trump’s failed gambit to install a puppet attorney general at the Justice Department in the week leading up to the Jan. 6 attempted coup was a warning that we ignore at our peril.
Congress must repeal the Judiciary Act of 1789 and the 1870 law creating the Justice Department under the executive branch and pass new legislation placing all federal law enforcement and U.S. Attorneys under the control of the federal judiciary, with the attorney general in day-to-day control of the law enforcement bureaucracy as is currently the case. However, in the revised system I propose, the AG would in turn answer to the Chief Justice of the Supreme Court, not the sitting president.
Moving the Justice Department out of the executive branch and placing it under the control of the federal judiciary would sharply reduce the total number of federal law enforcement officers available to an authoritarian president to violate the rights of Americans.
And because the Supreme Court decision in Trump v. U.S. applies only to the president in terms of immunity for criminal acts committed while in office, it would also mean that appointees or civil servants in any agency or department of the federal government considering following an illegal order would think twice before they do so because the courts could send the FBI to arrest them.
It’s true that a president’s pardon power could be wielded to engage in individual pardons or even a mass generalized pardon program as a means of thwarting arrests and prosecutions of federal employees who break the law. However, to preempt this, Congress should pass legislation that anyone pardoned by a sitting president for illegal acts for which they had been charged would be ineligible for reemployment with the federal government and no funds could be lawfully appropriated for any agency or department that attempts to reemploy such persons in defiance of the law.
Military Ground Force Structural and Chain of Command Reform
The American military was meant to be used only to protect the United States from external foreign aggression, not to be a back-up force for federal, state, or local law enforcement in actions aimed at domestic political protesters. Accordingly, with the exception of the XVIII Airborne Corps (which is needed for quick-reaction operations to protect American interests and allies overseas), all other existing Regular Army and Air Force combat units should be transferred to the control of the National Guard in the states where they are currently deployed.
Such a restructuring would still allow future presidents to call up Army and Air Force units in the event of Congressional authorization for the use of military force or an actual declaration of war. This would otherwise ensure that the lethal combat power of the Army and Air Force remain under decentralized state control of their respective governors. The relatively small size and foreign operations focused posture of the U.S. Marine Corps make it less of a potentially useful tool of repression in the hands of an out-of-control president.
Abolish the Department of Homeland Security
A sprawling entity created by Congress without intelligent or considered debate in the period after the 9/11 attacks, the Department of Homeland Security should be dismantled and its constituent law enforcement placed under the control of the federal judiciary under the day-to-day control of the attorney general. This approach would not only further restrict a potential authoritarian president’s pool of armed agents to potentially go after political opponents, but it would also create a more rational allocation of national law enforcement personnel and assets.
Every proposal I’ve suggested would require only legislative action by Congress, not any constitutional amendments.
More broadly in the political sense, the proposals recognize that preventing the destruction of the Republic in the MAGA or post-MAGA/New Right era is about using the legislative process and the law to restore actual checks on executive power by eliminating the domestic concentration of that power in the executive branch.
Would all of this be controversial, especially among MAGA or MAGA-adjacent members of Congress? Almost certainly … but that’s no reason not to take whatever action possible to prevent amother Jan. 6 political nightmare and its aftermath. Whether Harris will embrace this kind of approach if elected is something only time will tell. But it is troubling that she or her party thus far are not showing any signs that they are seriously thinking of steps to avoid a repeat.