The Constitution And The Court

When Trump first began issuing his blatantly unconstitutional Executive Orders, Women4Change Indiana–recognizing that simply labeling an Order unconstitutional lacked substance– asked me to draft “quick and dirty” explanations of why these Orders deserved that label. I agreed, and proceeded to offer brief explanations I titled “Your Constitutional Minute” which the organization posted to its website.

As we hurtle into even more uncharted waters–as we discover that our rogue Supreme Court is far less interested in protecting our constitutional liberties than either their predecessor or the lower courts–I thought it might be useful to share some of those posts, so that readers might draw their own conclusions about the increasingly dangerous legal territory we inhabit.

Let’s just look at the first of those “Constitutional Minutes.”

Section One of the 14th Amendment reads as follows:                

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Donald Trump’s Executive Order, in pertinent part, reads:               

It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons:  (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

The Law:

A president cannot repeal part of the Constitution by executive order. Congress cannot repeal a Constitutional provision by passing a new law. Amending the Constitution requires a two-thirds vote in both the House and Senate, and subsequent ratification by three-quarters of the states.

Every statement in that brief explanation is accurate. Thus far, they all remain accurate. But the Supreme Court just undermined the application of the constitutional language–not by ruling that it doesn’t apply, but by issuing a ruling that will make it more difficult for people to claim its protection.

The Court did not rule on the merits of Trump’s effort to undermine the clear language of the 14th Amendment. Instead, the majority addressed a procedural question: whether lower federal courts have the authority under the Judiciary Act of 1789 to issue nationwide injunctions. Injunctions are judicial orders that block government actions, and nation-wide injunctions block such actions against everyone, not just the plaintiffs. In other words, if a court finds a government action to be unconstitutional, a national injunction prohibits the government from taking that action anywhere–not just in the state or circuit in which the case arose.

By a 6–3 vote, the Court—led by Justice Amy Coney Barrett—held that district courts generally lack the power to grant nationwide injunctions if that relief is broader than necessary to provide “complete relief” to the plaintiffs who brought the case. The Court granted the government’s request for a partial stay of the nationwide injunctions against Trump’s clearly improper birthright-citizenship Executive Order—although “only insofar as the injunctions exceeded the scope” needed to grant relief to the plaintiff in the lawsuit.

Confused? It was intentional.

Basically, the Court declined to agree that Trump could change the clear language of the 14th Amendment. That outcome was predictable, given the clear language of the Amendment and the history of its jurisprudence. So the radical members of the majority helped the autocrat in the White House by undermining the available remedy.

Justice Sonia Sotomayor called the decision out for what it was, in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson. Saying that “No right is safe in the new legal regime the Court creates,” Sotomayor wrote “Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law abiding citizens or prevent people of certain faiths from gathering to worship… That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.”

In law school, we learn that there is no right without a remedy. 

Welcome to Trump’s America.

Comments

Ignorance And Stupidity

On this 4th of July, America is reeling under the combined threats of official ignorance and pervasive stupidity.

To be human, of course, is to be ignorant. There are all sorts of things that virtually all of us fail to understand. In my house, it tends to be most aspects of the emerging digital universe (I know AI is coming but have absolutely no idea how it works or what it portends, and my ability to understand the various devices my grandchildren grew up with is similarly limited). A depressingly significant portion of the population is ignorant of America’s legal framework and the most basic premises undergirding the Constitution and Bill of Rights. For millions of Americans, it’s ignorance of science and the significant difference between a scientific theory and the common use of the term “theory” as an unsupported guess.

Rather obviously, these knowledge gaps are not mutually exclusive….

Ignorance can be remedied. With proper motivation, most of us can fill in those empty spaces in our understanding. We can learn. Stupidity, however, isn’t amenable to similar correction. It’s defined as a lack of intelligence or understanding–an inability to reason or learn.

We are currently governed by people who exhibit both, elected by voters who–at the very least–were ignorant of both the nature of public service and the damage that predictably ensues when incompetent ideologues are placed in positions of authority.

America has a secretary of health and human services whose conspiratorial approach to reality and inability to understand science has led (among other appalling things) to a major outbreak of measles–a disease once virtually eradicated–and who has suggested that those afflicted take cod liver oil. We have an agriculture secretary whose “solution” to high egg prices is advice that we raise our own chickens. We have a secretary of defense–a dipsomaniac– who accidently included a journalist on an unsecured call in which national security matters were discussed. The list goes on…

The “Big Beautiful Bill” that contains MAGA’s policy priorities won’t just deprive millions of health care in order to line the pockets of our plutocrats– it will destroy this country’s storied educational institutions, and derail America’s scientific and technological progress.

The Trump administration’s fixation on ridding the country of immigrants–not simply those who’ve committed crimes, as candidate Trump promised, but any immigrant who lacks lily-white skin– is perhaps the best example of the profound stupidity that always accompanies racism.

Immigrants have been essential elements of American innovation and economic growth. Research conducted by the Partnership for a New American Economy in 2010 documented their importance. More than 40% of Fortune 500 companies were founded by immigrants or their children. Collectively, the companies founded by immigrants and their children employed more than 10 million people worldwide; and the revenue they generated was greater than the GDP of every country in the world except the U.S., China and Japan.

The names of those companies are familiar to most of us: Intel, EBay, Google, Tesla, Apple, You Tube, Pay Pal, Yahoo, Nordstrom, Comcast, Proctor and Gamble, Elizabeth Arden, Huffington Post. A 2012 report found that immigrants are more than twice as likely to start a business as native-born Americans. As of 2011, one in ten Americans was employed by an immigrant-run business.

As we are discovering, America’s agriculture and construction industries overwhelmingly rely on immigrants, the majority of whom are undocumented.

MAGA’s anti-immigrant hysteria is part and parcel of its equally ignorant White Christian Nationalism. There has always been a nativist streak in America– Ellis Island was first established to keep “undesirables” from entering the country. “Give me your tired, your poor, your masses yearning to breathe free” was Emma Lazarus’ response to the Chinese Exclusion Act. The Know-Nothing Party was formed largely by people who feared that Irish Catholic immigrants would take jobs from God-fearing Protestant “real Americans.”

The animus isn’t new, but it rests on widespread ignorance. As David Brooks (no bleeding heart liberal) has observed, when you wade into the evidence you find that the case for restricting immigration is pathetically weak. “The only people who have less actual data on their side are the people who deny climate change.”

Trump’s fixation on immigration has consistently been both stupid and ignorant, as well as inhumane. Remember his first term promise to build a “beautiful wall” on our southern border? The vast majority of people who are in the country illegally flew in and overstayed their visas—something a wall would neither address or prevent. (It would, however, focus on those Brown people…)

MAGA’s slogan ought to be: “Owning the libs by cutting off our noses to spite our faces.” Unfortunately, we “libs” live here too…

Comments

Our Pathetic Indiana Government

Today, I’m taking a detour from the depressing state of the nation in order to indulge in a very personal rant about the equally depressing performance of my state’s government.

How many times have we all heard some self-important “Captain of Industry” pontificate about running government like a business? And how often have we responded–calmly and logically–by explaining the multiple and substantial differences between government and business enterprises? When I am engaging in these discussions, however, I routinely add a statement to the effect that we do have a right to expect that government will be businesslike, meaning that government agencies should operate in an efficient and professional manner.

I don’t know what people in other states experience, but in Indiana those in charge of the various services we expect government to provide, services we rely upon, are clearly uninterested in either efficiency or professionalism. Our Governor, Lieutenant governor, Attorney General and legislative super-majority are far too engrossed with rewarding their donors and indulging their culture war obsessions to bother with effective administration of the various agencies with which Hoosiers are required to interact.

Permit me to offer a recent example.

A few weeks ago, someone stole my husband’s IPhone and wallet from his locker while he was working out. Anyone who has lost a wallet or had one stolen will immediately understand the nightmare that ensues–cancelling credit cards and getting replacements, figuring out how to get copies of medical insurance and Medicare cards…(we’re still waiting on the Medicare replacement, which we’re told takes some 30 days.)

And then, of course, there’s replacing the “Real ID” issued by the Bureau of Motor Vehicles. (My husband stopped driving a few years ago, but still needs that “real ID” for travel.)

Welcome to the Indiana’s Bureau of Motor Vehicles web page, which hasn’t been updated in who knows how long, and which is demonstrably, wildly inaccurate. The BMV web page lists the locations of branches and self-service “kiosks” located in other buildings. My husband visited at least two of the listed kiosk locations, only to discover that they not only lacked the promised kiosks, but–according to building personnel–had never housed any such structures or anything similar.

The license branch that we have used over the past several years is still listed, with its operating hours. What the website neglects to mention, however, is that it was closed several months ago, when the BMV shuttered a number of locations.

After a couple of wasted visits, as we prepared to travel considerably farther, to a location that is presumably still in operation, I consulted the website to see what sort of documentation the BMV requires to confirm that my husband is both a citizen and a bona fide resident of the state of Indiana, and I discovered a list that was evidently assembled well before the Internet became pervasive and rather clearly hasn’t been reconsidered since.

He can use his passport to confirm identity and citizenship (which is good because I never heard of several of the other “acceptable” items listed). But the BMV wants a minimum of two “original documents” to demonstrate Hoosier residency. The site lists utility bills, bank statements and/or a variety of other bills and statements that people used to receive via the U.S. mail, but that most Americans now now receive virtually, via email or app. (The language on the site is very definite that only original documents are acceptable, so apparently, a printout of a digital statement or bill would not pass muster.)

In all fairness, once we had traveled 45 minutes to the now-nearest branch, the process was efficient and the employees helpful–much better than we’d expected, given the website and branch closures.

If all those Republicans who think government should be “run like a business” actually ran their businesses like this, they wouldn’t be in business very long.

I guess it’s too much to expect that someone in Indiana government might take a break from what they evidently believe are their primary duties: interfering with women’s reproduction, waging war on education, ferreting out that scandalous DEI, hassling Drag Queens, and keeping trans kids out of sports (I think statewide there are two of them)–and spend some time improving the performance of the agencies they are actually employed to manage.

But hey–this is Indiana, where voters regularly elect these culture warriors. Evidently, Hoosier voters don’t connect the dots between our seriously substandard public services and the Christian Nationalist theocrats they elect.

Comments

There’s Good News Too..

Yes, things are bad. Yes, we are facing a not-so-slow-rolling coup. Yes, we are being governed by unprincipled and profoundly ignorant people. Yes, Trump’s horrific bill narrowly passed the Senate. But if we look, there’s also evidence that good people–good citizens–are fighting back. Effectively.

Just a couple of weeks ago, Americans of Conscience transmitted a long list of positive news items, “wins” for democracy, including everything from a town council in Barrington, Rhode Island unanimously voting to declare their town a sanctuary  for transgender people, to Tulsa, OKlahoma’s announcement of a $105 million reparations package for the 1921 Tulsa massacre, to the thousands of people in Los Angeles, New York, Pittsburgh, Chicago, Charlotte, San Diego, Boston, Houston, San Antonio, Minneapolis, Worcester, MA, and elsewhere showing up to support neighbors facing unjust ICE raids, detainment, and deportation, to the successful EarthJustice lawsuit requiring the USDA to restore deleted information about climate change from the government website.

There were dozens more.

Then there was the welcome news that the Senate Parliamentarian had tossed numerous provisions of the “Big Beautiful Bill” for violating the Byrd rule limiting what can be included in reconciliation bills. Among the provisions that were deleted:

A provision selling off millions of acres of federal lands
A provision to pass food aid costs on to states
A proposed limitations on food aid benefits to certain citizens or lawful permanent residents
Proposed restrictions on the ability of federal courts to issue nationwide injunctions and temporary restraining orders
A proposal for a funding cap for the Consumer Financial Protection Bureau and for slashing pay of employees at the Federal Reserve
A proposal to slash $293 million from the Treasury Department’s Office ofFinancial Research
A plan to dissolve the Public Company Accounting Oversight Board
An effort to repeal an EPA rule limiting air pollution emissions of passenger vehicles
An item allowing project developers to bypass judicial environmental reviews if they pay a fee
A measure deeming offshore oil and gas projects automatically compliant with the National Environmental Policy Act
A modified version of the REINS Act, which would increase congressional power to overturn major regulations
A scheme to punish so-called sanctuary cities by withholding federal grants
An increase on Federal Employees Retirement System contribution rate for new civil servants who refuse to become at-will employees
A measure seeking to extend the suspension of permanent price supportauthority for farmers
A requirement forcing sale of all the electric vehicles used by the Post Office
A change to annual geothermal lease sales and to geothermal royalties, June 24)
A proposal for a mining road in Alaska
Authorization for the executive branch to reorganize federal agencies
New fee for federal worker unions’ use of agency resources
Transfer of space shuttle to a nonprofit in Houston from the Smithsonian’s National Air and Space Museum

And that is only a partial list. The ruling deleted at least some elements of this obscene effort to rob the poor to further enrich the plutocrats–at least from the Senate version.

As Simon Rosenberg recently reminded readers of his “Hopium Chronicles,” Trump is struggling and unpopular. Despite his efforts to wag the dog, his poll numbers have steadily dropped. Overall, his approval is down 20 points from week one, but perhaps more significant is the evidence that his incursions into the Black, Latino and youth votes are dissipating. In week one, 29% of Black voters approved of him; that number is now 12%. Hispanic approval has fallen from 42% to 30%. And the  approval of those between the ages of 18 and 29 has gone from 48% to 28%.

Rosenberg credits the thousands of grassroots groups that have emerged across the country, and the creation of 
new media organizations like Meidas Touch and COURIER Newsroom. (He also notes that Substack is becoming a powerful new platform for our politics–part of the way that news and media consumption habits have changed in the past year.) 

We’ve also seen the emergence of an entire new network of pro-democracy legal organizations, focused on defense of the Constitutional order, and increased pro-democracy activism by the nation’s 23 Democratic Attorney Generals.

New leaders are emerging, rising to the moment, breaking though (Newsom, Pritzker, Crockett, Murphy, Frost, AOC, Booker, Slotkin, Mamdani, etc)

We are communicating who we are right now through our opposition to Trump and our work to prevent his assault on the middle class, weakening of our health care system and abandonment of the Constitutional order. I think these fights are helping connect us to the core of who we are – champions of every day Americans, proud patriots who love this country and are willing to fight for it.

The good news is that good Americans are making what John Lewis called “Good Trouble.”
 

Comments

Mamdani And “Leftism”

Last Tuesdaay, Zohran Mamdani won the Democratic primary for mayor of New York, and the usual subjects immediately went into high gear, once again demonstrating that American politics has become all about labeling rather than policy analysis. The mere fact that Mamdami identifies as a Democratic Socialist (along with Bernie Sanders) was enough to set the Right raving about a communist takeover of the Big Apple. 

Over the past decades, the political Overton Window has shifted so far to the right that policy proposals that once appealed to liberal Republicans (back when the GOP was a political party rather than a semi-fascist cult) are now labeled “far Left.” 

Take Mamdani’s support for free bus service. My husband and I met when we both served in the very Republican Hudnut Administration–I was Corporation Counsel, he was Director of Metropolitan Development. Reporters who covered City Hall (we had those back then) considered both of us “right of center.” He has long been a proponent of free bus service, for a number of reason related to the environment and urban development.

I tend to disagree with Mamdani’s support of rent controls, which have been in place in New York since 1920, and have been supported by New York Mayors for years. I think those controls ultimately disincentivize new construction. I agree with his other proposals for increasing the housing supply–and find his concerns for housing affordability laudable–and in any sane world, centrist.

What about grocery stores for food deserts? Here in Indianapolis, in the middle of Red Indiana, lawmakers have suggested a variety of government supports for our own underserved areas–not actual municipal grocery stores, but not government “benign neglect” either.

Let’s face it–the American Left is far, far to the Right of the European Left, and bears absolutely no resemblance to communism. Right-wingers conflating them rely on Americans’ (admittedly widespread) political ignorance.

Of course, a good deal of the hysteria over Mamdani’s win is really anti-Muslim sentiment promoted by our own Taliban-like Christian Nationalists. (And I won’t even dignify the efforts to paint his entirely defensible opinions on Gaza as anti-Semitic.)

Mamdani’s victory ought to trigger a reconsideration of a foundational political issue: What is the nature of the social and physical infrastructure that government should provide? And in a federated system, which level of government should be responsible for which pieces of that infrastructure?

What sorts of “socialism” should cities provide?

Over the years, Americans–especially in our more densely-populated cities–have learned that we need to provide police and fire safety communally, that public health requires, among other things, communal provision of garbage collection. Sewers are built and maintained by public and/or semi-public entities;  until the GOP’s “privatization” efforts, public schools were understood to be a public necessity.

I haven’t seen people advocate for private provision of streets, sidewalks and traffic controls–and although a few libertarians have complained that libraries should be replaced by bookstores and public parks by private clubs, very few citizens agree. 

We don’t call those and numerous other public amenities “socialism,” but of course, they are. They are socialized services, paid for with our tax dollars.

Back when people running for public office cared about policy rather than power, political disputes were essentially about the nature and extent of the physical and social infrastructure that governments should provide, and how that provision should be structured, managed and paid for. What level of government should handle air traffic, food safety, disaster relief? What functions are more properly handled at the state or local level? Have demographic or social changes altered the considerations that led to prior decisions?

We have almost entirely abandoned those very important, very foundational questions in the midst of our existential battle to forestall a rolling coup, but ultimately, those are the questions that lawmakers must confront. They are the questions–and his answers to them– that Mamdani elevated in the recent New York primary. Political discourse in this country has become so divorced from actual policy that rather than engaging with his issues, rather than debating the merits of his proposals, the reaction to his campaign was name-calling. 

I don’t know whether Mamdani–whose experience in government is thin–will be an effective Mayor of the country’s most immense city. That issue, it seems to me, is legitimate. Mounting objections to his proposals based upon facts and evidence is also legitimate. But the critics who are engaging in labeling and name-calling have adopted Trump’s approach to politics–an approach mimicking the tactics of schoolyard bullies and five-year-olds and entirely divorced from the real issues of governance.

Comments