AFTER SCALIA, WHAT?February 19, 2016

The death of Supreme Court Justice Antonin Scalia has stirred quite a political spat. Republicans, like presidential candidates Ted Cruz and Donald Trump, and Senate Majority Leader Mitch McConnell, demand that President Obama not nominate anyone to the Court given that the 2016 presidential election is less than a year off. This line of thought is interesting but could lead to unanticipated developments.

I get the Republicans’ point. A new justice will play a major role in shaping the nation’s direction. They want the American people to have a say in the matter. But questions arise. For example, should a lame duck, eighth-year president be forbidden to take action on all major issues? Digging deeper, since the formal election process, which includes primary campaigning, starts in a president’s seventh year—Mr. Obama’s eighth year began this past January 20—should a president be sent to the sidelines in that seventh year? Wouldn’t a president better serve the Constitution by being active for six years then becoming a figurehead for two more?

Then again, not all presidents serve eight years (up to a maximum of ten if succeeding to the presidency), which requires election to two full terms. In my lifetime, John F. Kennedy (assassination), Lyndon Johnson (personal choice aka Vietnam), Richard Nixon (resignation—Watergate), Jimmy Carter (defeat—Ronald Reagan) and George H.W. Bush (defeat—Bill Clinton) all served less than two full terms (Kennedy less than one). So we might limit a president’s active service to the first two years of any term. During years three and four, presidential activity would be put on hold. The president could not make Supreme Court or other judicial nominations, introduce legislation from the White House or even serve as commander-in-chief without Congressional approval.

So a president would work actively for two years until election results wore thin. But consider this: Members of the House serve two-year terms. Why elect a president to be inactive for two years in each four-year term when the Speaker of the House, chosen by the majority party, could serve as the nation’s chief executive officer? The House Majority Leader would handle that body’s day-to-day business. Sounds like a parliamentary system rather than our constitutionally mandated presidential system? Let’s not get picky.

But hold on. Representatives position themselves for re-election at the start of their two-year terms if not right after Election Day. It makes no sense for a speaker to serve as chief executive when a new election is right around the corner. The American people should have their say. Unless, having just voted, they had their say.

Logic dictates a simpler solution: Eliminate the positions of President and Vice-President along with Congress. None of these folks provide true representation to Americans since there’s always another election just over the horizon. Leave all government functions to the states, which will serve as sovereign nations. Whether the Republic of Texas will accept passports from the Republic of California remains a question, but minutiae shouldn’t derail democracy.

In sum, if reactions to Justice Scalia’s death have taught us anything, it’s that the Constitution can be quite plastic in defense of the Founders’ strict intent. So let’s put the United States on hiatus. Another upside: we won’t have to hear crowds in Tehran chant, “Death to America.”

Read the first two chapters of FLIGHT OF THE SPUMONIS here at www.davidperlstein.com. You can get a signed copy from me or order a soft cover or e-book at Amazon.com.

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