I spent 21 years teaching university students that lawmakers’ policy decisions are constrained by the U.S. Constitution. I approached my classes in Law and Public Policy through a constitutional lens–an approach that began by emphasizing that Separation of Powers is a fundamental element of America’s governing structure.
Separation of Powers is the technical term for the division of government authority among the three branches: the executive, the legislative, and the judicial. When the men we now think of as “the founders” undertook revision of the Articles of Confederation (a revision that turned into a wholesale jettisoning), their concern for limiting the power of government led them to divide governmental power two ways–through federalism, which separated the jurisdictions of local, state and national government units, and through Separation of Powers--the allocation of specific powers to each of the three branches. They were very explicit about the purpose of that structure, which was to limit the ability of any one branch of government to exercise too much control.
When media pundits talk about Trump’s persistent violations of the Constitution, they tend to focus on how his actions violate specific elements of that Constitution (the assault on birthright citizenship, fiscal decisions that are specifically within the purview of Congress, etc.). What we are experiencing, however, is an even more fundamental breach of our founding philosophy–a breach quite correctly identified in the recent “No Kings” protests.
The incredible damage that Trump has done and is continuing to do has been dependant on the abdication of the legislative branch, and the evisceration of the power of the courts. Not all the courts, but very definitely the Supreme Court.
The fecklessness and cowardice of the few Congressional Republicans who haven’t drunk the MAGA Kool-Aid is widely understood. (Here in Indiana, we have one of each: a Christian Nationalist MAGA idiot who was elected because he had an R by his name in our deep-Red state, and a far brighter coward who undoubtedly understands how destructive this administration is, but displays continued fealty to our would-be King in order to protect his re-election prospects.)
The GOP cult that currently controls Congress has neutered the authority of the legislative branch, turning it into a body that obediently acquiesces to whatever passes for policy from the increasingly insane occupant of the Oval Office.
The situation of the courts is different. As Talking Points Memo recently reported, the lower courts have been doing their jobs. District and appellate judges appointed by both Republican and Democratic Presidents have handed down decisions that are consistent with both the constitutional text and longstanding precedents.
Stanford University political scientist Adam Bonica compiled data on the administration’s win/loss record in federal courts from May 1 through June 23. He found that in cases brought against its sprawling excesses the Trump administration has lost 94% of the time at the district court level. That’s a truly terrible litigation record. But at the Supreme Court, Bonica found, DOJ won 94% of the time.
The Trump administration has eviscerated the Department of Justice, turning a once-storied, independent agency into Trump’s personal law firm. In its current iteration, the agency has brought cases that would once have been considered legally ludicrous, hoping that the Supreme Court would eventually counter the anticipated negative rulings of the lower courts.
“We are witnessing something without precedent,” Bonica wrote. “[A] Supreme Court that appears to be at war with the federal judiciary’s core constitutional function.”
Administration officials are well aware of how their Supreme Court allies have their back in this campaign to delegitimize the trial courts. “All these district courts throughout the country are tying our hands,” complained Attorney General Pam Bondi, under questioning from Sen. Patty Murray (D-WA) at a Senate Appropriations Committee hearing yesterday. “And here’s how we will follow them—when we get to SCOTUS, we’re winning.”
The Talking Points article accuses Trump’s Department of Justice of “a completely unprecedented and coordinated vendetta to undermine the authority of federal district courts.” (Not just the federal courts: in April, FBI agents arrested a Milwaukee County Circuit Court judge, charging her with interference with an arrest by ICE. The FBI’s claims have been contradicted by eyewitnesses who were in the courtroom.) As unthinkable as it would have been in any other administration, the Department recently sued every sitting judge in the United States District Court for the District of Maryland. Why? Trump’s DOJ wants to invalidate a standing order that ensures an automatic two-day reprieve for immigrant detainees.
When neither the legislature nor the courts assert their constitutional powers, the Mad King is unconstrained. And the U.S. Constitution is history…
Let the pogroms begin – and continue.
Michael Steele pointed out last night that the network of citizens working to shield immigrants from Stephen Miller’s SA (In this case, green shirts)are creating another underground railroad.
This horror show has been a long time in the making with Trump acting as the gasoline poured onto a pile of Republican rags and set afire. Thomas appointed by GHW Bush. Alito and Roberts by Bush’s dummy child. Barrett, Kavanaugh and Gorsuch appointed by the criminal in charge. Throw in creatures like Aileen Cannon and the courts are no longer a separate power, but a grease for Trump’s fascist agenda.
The founders must be spinning in their graves, especially since they are also witnessing the collapse of voter involvement. If you were still teaching today, Sheila, how would you address your classes regarding this horror show?
The “separation of church and state” ended when the Catholics took over the Supreme Court; their beginning of the end of separation of power opened all doors to what we now see as the opening salvo on January 20, 2025 to install the Fascism we are now governed by.
For two years I frequently complained about the lack of unity, the “inner separation” within the Democratic party, was heading us to the Trump/MAGA leadership. The infighting and back-biting within the Republican party between the MAGAs and the cowardly Republicans ended at the polls for every election as they easily took over the entire Constitutional “separation of powers” and ended it with Elon Musk’s DOGE leadership and his personal Tesla car sale on the grounds of our White House. I read recently that the former beautiful Rose Garden, destroyed by Melania Trump during their first term, has now been cemented over. “They paved over Paradise and put up a parking lot.” came to reality and we have no one who can operate a jack hammer.
“When neither the legislature nor the courts assert their constitutional powers, the Mad King is unconstrained. And the U.S. Constitution is history…”
Stephen Miller should be executed by firing squad during the next Democratic POTUS. Any potential candidate not running with that platform should be ignored. Americans need to quit playing softball with these idiots.
I don’t know how to eliminate judges in offices, but we need to start building guillotines for them as well. Anything less is a waste of time and energy.
If Americans want to be subjected to the oligarchic system, then sit by and watch things unfold under tyranny. If you prefer our intended government system, it is time to show those who want to overthrow our government a proper burial. Quit effing around…
All Kings Marches- great efforts- of a Beginning!
Missile attacks on Iran- a most successful diversion!
Is Epstein a PROBLEM or a danger?
We will see!
Israel-Iran-Gaza
Immigrants
and for a moment- The Washington Commanders
Diversions-
First Two- Important
Don’t Expect the Media, Politicians or Courts –
to Confront the Money and Power
Portugal- peacefully ended its Fascism – but
No Nuclear Weapons nor Economic Equity to this day
INDIVISIBLE + allies trying to build a million Active Resisters-
One key effort- now- July 30th next virtual Zoom meeting- will be my First Time
Each of you Can Prioritize it and Similar Efforts asap!
Sheila you point all of us towards both the Heather Cox/ Richardson / Paul Krugmans as well as more Radical Individuals and Resources- Chris Hedges, Common Dreams and more.
I’m happy to discuss things Privately as are many of us!
Thanks for outing our collective rage. I agree with every point you made today. A first. LOL.
Stephen Miller and Mitch McConnell!
Oh, it was the elder Bush who allowed Murdoch into the country, when Oz had the sense to send him away. As nothing comes from nothing, we have Reagan to thank for any Bush.
Recoat loyalty is now indistinguishable from fascism because of how extreme it’s become. Fear-based loyalty is pandemic now, inside and out of the Red Party.
Trump probably is the initial source because he’s been running his loudspeaker mouth for so long and loud, but Steven Miller is his consigliere.
The chief difference between us and them is that we understand the situation and deal with it, while they wallow in fear like serial killers, both the victims’ fear and the killer’s.
Fascist, Redcoats, and serial killers are the victims of similar emotions.
Can I point out that most people lead their comments on separation of powers with the executive. The founders led their comments, the Constitution, with the legislative branch. When we begin thinking about executive power as necessary to keep the sheep in line we’re not thinking about the harm to our system that will flip it on its head.
Given time, the Republicans would complete takeover of the courts as well. There was an agreement between Reid and McConnell regarding votes on judicial nominees. The agreement was that Circuit and District Court nominees would require a majority vote, but SCOTUS nominees would still require sixty votes. When McConnell knew he couldn’t get Gorsuch over the line, he tore up the agreement. Unlike Reid, Schumer was just the right amount of gullible to be the perfect foil for McConnell to manipulate.
Bush II was clear that his job was marketing while Dick Chenney was chief executive.
I think we have returned to that model but now Steven Miller is CEO.
Stephan Miller has said “ children will be taught to love America “. I’m afraid such a concept can’t be forced on someone, Adolph. Want love? Be lovable!
Msammy, love is a many splendered thing. It follows us through life and slowly becomes the hardened glue holding things together.
Our family is more tightly bound as each day adds to the toll. The country was, like last year.
Trump and his crew of misfits are tearing apart things that bind us, hold us together as a country, as a society, as a culture, a people, and as a country.