Author Archives: Sheila

No Right Without A Remedy

One of the lessons one learns in law school is that there cannot be a right if there is no available remedy.

When you think about it, that makes sense. If I have a right to do X, and you prevent me from doing X, I should be able to sue you. if there is no way to punish you for interfering with my ability to do X, the “right” is non-existent–a fiction.

Which brings me to the Minneapolis murder of Renee Good by ICE officer Jonathan Ross.

A recent essay in the New York Times was co-authored by two giants of the constitutional legal community, Erwin Chemerinsky and Burt Neuborne. In that essay, they addressed the question whether Good’s family has a remedy–whether they can even bring a lawsuit against an ICE officer who shot an unarmed mother of three, muttered “Fucking bitch,” and walked away.

Had Good been shot by a state or local officer, there would be no question. For 150 years, a law known as “Section 1983” has permitted suits against those acting “under color of state law.” The Civil Rights Act of 1871 expressly made it a crime for state or local officers to violate a person’s rights. As the authors note, that act also allows “civil suits for monetary damages or injunctive relief against any state or local employees who, in the course of their work, violate the Constitution or federal laws.”

If a city adopts an ordinance that violates the First Amendment, a citizen can sue the city under Section 1983. If a police officer uses excessive force, which the Supreme Court has held violates the Fourth Amendment, the victim can sue the officer under Section 1983. Section 1983 suits account for a significant part of the workload of federal courts.

When I was Executive Director of Indiana’s ACLU, we routinely brought cases under Section 1983. (A related federal statute that is equally important allows the recovery of legal fees if such a lawsuit is successful–without such a provision, only wealthy people could afford to vindicate their rights.)

Section 1983 only applies to officials acting under the authority of state law. The Minneapolis police officer who murdered George Floyd was sued under that section. But the ICE officer who killed Renee Good is a federal employee–he cannot be sued under Section 1983. And it turns out that there is no federal law authorizing suits against federal officials who violate a citizen’s constitutional rights.

In light of this, in 1971, the Supreme Court came up with a fix of its own: allowing people whose constitutional rights have been violated to sue for monetary damages without needing a federal statute.

In that case, the Court said the plaintiff could sue directly under the Fourth Amendment–and for a decade the court followed that precedent.

But after 1980, the court sharply shifted course. Not once since then has it allowed Bivens suits (as they came to be known) to go forward. In case after case, the court has precluded people whose rights have been violated from suing even when they suffered great injuries….

The Supreme Court repeatedly has said that if Congress wants to authorize such suits, it can enact a law, similar to Section 1983, that allows suits against federal officers who violate the Constitution. Such a law is important to ensure that those whose rights are violated can receive a remedy, including compensation for their injuries. Civil liability is also a crucial way of deterring wrongdoing.

There is no credible argument for continuing this state of affairs. Passage of a law mirroring Section 1983, but for federal officials, would simply level the playing field. There is no reason to exempt federal lawbreakers from rules that apply to their state and local counterparts–no reason to protect federal actors who knowingly violate the constitutional rights of citizens. (It’s important to note that a right to bring suit isn’t a right to win such lawsuits–there are legal and factual defenses available that protect officials against ill-founded accusations.)

As the law now stands, Jonathan Ross may escape liability for an action that would clearly be illegal if he was employed by  local or state police. The absence of a remedy for Good’s family is the absence of a right–in this case, a right not to be murdered by an agent of the federal government. (And it was murder, as anyone who viewed the multiple videos available could clearly see.)

The essay concludes with a call for a “Renee Good Act” that would close this gaping loophole. I can think of few things more appropriate than passing such a law and naming it after Good.

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Epistemic Breakdown

Epistemic breakdown is a fancy way of saying “destruction of a shared reality.” As a recent essay pointed out, that destruction is politically useful.

We’ve just seen an example in the administration’s propaganda about the murder of Renee Good. “Don’t believe your lying eyes”– believe the “revised” reality we offer instead. But that example is a small part of a sustained assault.

If–like so many Americans–you’ve found the administration’s attacks on science and education mystifying, the essay offers a frightening and detailed explanation.

If you can convince a large segment of the population that experts cannot be trusted, institutions are corrupt, objective truth doesn’t exist, and loyalty matters more than evidence, then power no longer depends on performance or results. It depends on identity and obedience.

Science, especially, has characteristics that the author notes are fatal to authoritarian politics: it produces falsifiable claims that can be tested, and if found to be wrong, require us to update our beliefs. Science is also institutionally distributed. No single leader controls it. Like most scholarship, it requires peer review and subsequent replication. And–importantly–research undermines what the essay calls “charismatic authority.” Scholars and data don’t demand loyalty.

Authoritarian movements cannot survive in an environment where people accept that some claims are simply false, expertise matters, and reality constrains power. So science isn’t debated, it’s delegitimized.

Anti-vaccine rhetoric is particularly effective because vaccines sit at the intersection of government authority, personal autonomy, fear of harm, complex science, and immediate bodily stakes. That makes them ideal for narrative manipulation.

Anti-vax rhetoric accomplishes several things simultaneously: it reframes public health as tyranny, converts inconvenience into persecution, turns expertise into elitism, casts personal feeling as equal to evidence, and creates an “us versus them” moral divide.

Once that framing is accepted, any future policy can be painted the same way: climate action, election integrity, court decisions, civil rights protections.

The essay makes a further point that is hard to believe, given the sheer incompetence and lunacy on display in this administration: the author claims that the lies are often “deliberately obvious.” The objective is a demonstration of loyalty; those who accept the blatant lies prove their loyalty. Those who reject or dispute them self-identify as outsiders, as people who cannot be trusted. As the author points out, this is a tactic used in cults and authoritarian regimes. “The lie becomes a bonding ritual, not a claim about reality.”

When propaganda and lies are understood in this way, it becomes clear why “fact-checking” doesn’t work.

The endless cycle of “Trump said X, but actually Y” doesn’t expose the strategy, it amplifies it. Every fact-check is free publicity. Every debunking is another news cycle. The lie has already done its work by the time anyone “corrects” it.

From a power perspective, this strategy delivers a base that cannot be peeled away by evidence, immunity from scandal or failure, a permanent grievance engine, justification for extraordinary measures, and a population conditioned to accept coercion “in defense of freedom.”

It also creates an enemy class: scientists, journalists, doctors, judges, educators. Once labeled as corrupt, they can be ignored, sidelined, or purged.

The essay provides a long list of the way the strategy has been–and is being–employed, and it will look very familiar to those of us who have been blindsided by assertions that are self-evidently bonkers: vaccines don’t work, elections have been rigged, public schools are indoctrinating our children, etc. etc.

Historians are just beginning to trace the way in which the Right has developed and pursued  this strategy over the past 50 years. (The essay includes a timeline, and it names names.) It didn’t start as a coherent plan, but it developed into one over time. As the timeline shows, the destruction of Americans’ shared reality wasn’t random or accidental–it was built systematically “by specific people making specific moves at specific times, each building on what came before.”

The author breaks the history down into segments: the blueprint, the think-tank infrastructure, the merging of religion and politics, the building of the political machine, and so on. You really need to click through and read the lengthy essay in its entirety–it explains what the author calls the “parallel reality structure” we now inhabit–built by a stolen Supreme Court and nurtured by constant norm destruction, media capture, and Project 2025.

When courts enable rather than restrain, legislatures normalize rather than confront, executives reward loyalty over law, media profits from distortion, and capital hedges instead of resists, elite-led correction becomes structurally improbable.

For U.S. democracy to survive, enough ordinary Americans need to make authoritarianism too costly.

I know it’s long, but read the whole thing.

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ICE Barbie Says We Need Papers

Several years ago, when our older grandson was ten or eleven, my husband took him to New York, where he was most impressed by the museum at Ellis Island–especially the exhibit that explained the difference between America and many of the countries immigrants were leaving: in those repressive regimes, people could be stopped on the streets and required to produce their “papers.” 

In America, such tactics were scorned. We were a free people.

That grandson is now thirty-six, and the Trump administration is waging war on the  America celebrated in that exhibit. As the Daily Beast (among other outlets) has reported, Secretary of Homeland Security Kristi Noem has defended the ICE agents who are stopping people on the streets and demanding that Americans prove their citizenship. When Noem was asked if she  supported allowing federal agents to violate people’s Fourth Amendment rights–they are asking Americans for papers without reasonable suspicion–she responded that “Every single action that our ICE officers take is according to the law and following protocols that we have used for years. They are doing everything correctly.”

Noem evidently slept through her high school government class…

Nor is this throwback to “bad” countries an anomaly. There are increasing  parallels with those “unAmerican” regimes. 

Lincoln Square recently compared remarks from a 1980 speech by Iran’s Khomeni with pronouncements from our increasingly fascist regime. 

Khomeini: Iran should not just be an Islamic republic but a clerical republic. The clergy should be the ruling strata…

House Speaker Mike Johnson (R-La.): “I am a Bible‑believing Christian. Someone asked me today in the media, they said, ‘People are curious, what does Mike Johnson think about any issue under the sun?’ I said, ‘Well, go pick up a Bible off your shelf and read it. That’s my worldview.’”

Khomeini: Revolution should come about in all the universities throughout Iran, so that the professors who are in contact with the East or the West will be purged, and so that the universities may become healthy places for the study of higher Islamic teachings.

Steve Bannon: “I’ve told President Trump … we have to go into these elite institutions, cut out all the money. That’s a bitch slap, right? They’ll start paying attention.”

Khomeini: The false teachings of the former regime should be abruptly stopped in universities throughout Iran because all the misery of the Iranian society during the reign of this father and son was due to these false teachings.

President Donald Trump: “For many years, tuition costs at colleges and universities have been exploding … while academics have been obsessed with indoctrinating America’s youth. The time has come to reclaim our once great educational institutions from the radical Left, and we will do that.”

Khomeini: If we had a proper set-up in our universities, we would have never had a university-educated intelligentsia who during Iran’s most critical period are engaged in conflict and schism among themselves and are cut off from the people and are so negligent of what happens to the people, as though they do not live in Iran [shouts of “God is great!”].

Vice President J.D. Vance: “I think if any of us want to do the things that we want to do for our country and for the people who live in it, we have to honestly and aggressively attack the universities in this country.”

Khomeini: Most of the deadly blows which have been delivered to this society have been due to the majority of these university-educated intellectuals who have always regarded — and still regard — themselves as being great and have always said things — and still continue to say things — which only their other intellectual friends can understand, regardless of whether the people understand them or not.

Trump: “When I return to the White House, I will fire the radical Left accreditors that have allowed our colleges to become dominated by Marxist Maniacs and lunatics.”

These parallels are especially ironic, given Trump’s sudden concern for Iranian protesters while encouraging his ICE thugs to violently attack protesters in America.

Add to that the administration’s increasing use of Nazi slogans . As the Guardian has reported, recent posts from the Labor department have included a video using the phrase: “One Homeland. One People. One Heritage.” a retread of the Nazi slogan: “Ein Volk, ein Reich, ein Führer” (“one people, one realm, one leader”). Trump’s labor department has also published artwork that depicts only white male workers. “Its posts frequently cite “Americanism”, decry “globalism” and tout misleading claims that all US job gains under Trump have gone to “native born” Americans.”

They’ve gone way beyond dog whistles. As someone has told us “When people tell you who they are, believe them.”

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Cities

Wonder why Trump sends his SS troops–aka ICE–to cities? And why the people who live in those cities can be counted on to mount a resistance?

The nation’s cities are Blue, of course–studies show that every urban area over half a million people votes Democratic. There’s evidently something about density, about living near other people, that makes folks more likely to be “woke”– a term that actually denotes a degree of humanity and tolerance utterly lacking in the MAGA base. (There’s even data showing that people who live in more dense areas of America’s small towns tend to be more liberal than those in the more sparsely populated neighborhoods of those same towns.)

The American Prospect recently addressed the administration’s hatred of America’s cities. Harold Meyerson writes that

For leaders in search of uniform compliance, cities are inherently troublesome. They are, by their very nature, diverse: It’s cities to which both foreign and domestic immigrants flock, because it’s cities where there’s work. Worse yet, most successful cities foster some level of cross-group tolerance, or even, in the best cases, cross-group solidarity, as a necessary modus vivendi for keeping a city up and running. Partly in consequence, cities develop distinct cultures reflective of their diversity and their urbanity.

That’s why the current generation of our planet’s autocrats often lack support from their nations’ cities. Budapest has never voted for Viktor Orbán; Istanbul is a thorn in the side of Recep Erdoğan. A Muslim Labourite has been mayor of London since 2016, even as no major American city can be found that’s voted for Donald Trump in any of the past three presidential elections.

Of course, as Meyerson points out, Orbán hasn’t sent troops into Budapest, and Erdoğan hasn’t tried to subdue Istanbul. Our mad would-be king is threatening to invoke the Insurrection Act and to send the Army into Minneapolis to protect his SS troops while they seize people who, as Meyerson says, “look suspiciously brown.”

If there was any doubt that ICE is a recreation of the Gestapo, its recruitment materials –rife with retreads of Nazi slogans–should disabuse us of that doubt. The administration is clearly aiming to attract white nationalists who share a hatred for the diversity that characterizes the nation’s urban centers.

Meyerson says comparisons with the Gestapo and the Klan are incomplete– that a glance through history provides other apt comparisons: Trump as a 21st-century version of Attila or Genghis Khan,

heading a horde that is defined by an exterminationist loathing of cities and all that they stand for and promote. Their diversity, their toleration, their culture, their solidarity across racial and other lines—all are threats to the horde’s and its ruler’s autocratic monoculture.

That attitude goes a long way toward explaining the administration’s inhumane response to the murder of city dwellers, and its immediate, blatantly dishonest characterizations of these victims.

The pictures coming out of Minneapolis–the videos captured by cell phone cameras and photojournalists– are mind-blowing. The reactions of the legitimate, elected officials of the city and state have not only been entirely appropriate, they’ve echoed the reactions of those of us who never in a million years anticipated that we would live to see such things happen on the streets of an American city at the direction of an American president. Neither the Mayor nor the Governor has held back–both have “told it like it is.”

And “like it is” is shocking and heartbreaking.

For years, the extremist fringe on the political Right has lusted for a race war. Most rational Americans have gone about our businesses ignoring that fringe and its threats, dismissing the White Supremacists and Neo-Nazis as mentally ill and assuming that these deranged folks represented a small minority. Thankfully, they are a minority, but a majority of Americans failed to vote in 2024, and they were able to elect one of their own.

And he has assembled an administration composed of people who are just as profoundly sick and malevolent as he is.

In the absence of a functioning Congress and an honorable Supreme Court, it increasingly looks as if it will be up to those of us in the cities–the urban folks Trump hates– to power the resistance and reclaim the America that respected and obeyed the Constitution and the rule of law.

Minneapolis is leading the way.

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I Told You So…

I’ve fallen into a repetitive pattern; when friends or family members express horror at some new evidence of Trump’s ignorance, vanity or lunacy, I typically note that “he’s insane.” Rinse and repeat. On this platform, I have frequently offered the same opinion: in addition to stupidity and ignorance (not the same thing), Trump is clearly and increasingly mentally ill.

There is copious evidence of both his longstanding intellectual defects and his growing lunacy. The most recent–which actually managed to be startling–was the letter he wrote to the President of Norway, expanding on his fixation with Greenland.

That letter read in its entirely:

Dear Jonas: Considering your Country decided not to give me the Nobel Peace Prize for having stopped 8 Wars PLUS, I no longer feel an obligation to think purely of Peace, although it will always be predominant, but can now think about what is good and proper for the United States of America.

Denmark cannot protect that land from Russia or China, and why do they have a ‘right of ownership’ anyway? There are no written documents, it’s only that a boat landed there hundreds of years ago, but we had boats landing there, also.

I have done more for NATO than any other person since its founding, and now, NATO should do something for the United States. The World is not secure unless we have Complete and Total Control of Greenland. Thank you! President DJT

Where to begin? Perhaps by pointing out that Greenland is part of Denmark, not Norway? That the Nobel Committee is a private entity, not part of Norway’s government? That there are plenty of “written documents” memorializing both Denmark’s ownership and the U.S. recognition of that ownership?  That his obsession with the prize is flat-out nuts, and his assertions of having stopped eight wars is –to be polite, let’s just say–fanciful?

Historian Anne Applebaum’s response (among many) is on point; this pathetic missive proves beyond a doubt that “Donald Trump now genuinely lives in a different reality, one in which neither grammar nor history nor the normal rules of human interaction now affect him. Also, he really is maniacally, unhealthily obsessive about the Nobel Prize.” As blunt and undeniably correct as her assessment is, there’s little hope that the Republicans in Congress will respond to her plea to stop Trump from “doing permanent damage to American interests.”

Applebaum says that those Republican Congressmen “owe it to the American people, and to the world.” True. Unfortunately, however, most of them have already demonstrated their spineless subservience to a MAGA cult that is equally divorced from reality.

Paul Krugman has offered what may be the most accurate description of where we are with this madman at the helm of the ship of state. He compares Trump’s late-night social media posts and letters to his father’s “sundowning.” Sundowning is a particular type of mental illness that manifests at night–after the sun goes down. (On the other hand, as Krugman concedes, “This might not exactly be sundowning, since it’s not clear that Trump is lucid and rational at any time of the day. What is incontrovertible is that he’s deeply unwell and rapidly getting sicker.”)

Krugman points out that it is unfair to blame a mentally-ill person for his illness–that it is the people around him and the cowards in Congress who are genuinely responsible for enabling behavior that may well bring on the destruction of the world order. He concludes by asking the question so many of us have asked:

How did a great, sophisticated nation, one of the world’s longest-standing republics, end up so fragile that it can be undone by one man’s dementia? That’s an important question, the answer to which I believe lies in the straight line from Bush vs Gore and the Roberts Supreme Court, to January 6th, to the execution of Renee Good. However, what’s more important is that we realize where we are right now, that we don’t try to sugarcoat and sanewash what’s happening: A petulant, violent and deranged individual is running America.

We all know it. The clowns and sycophants in his cabinet and our spineless Senators and Representatives know it. As Krugman accurately notes, It would take only eight people — four Republican senators and four Republican representatives — to “switch sides and caucus with the Democrats” to end this nightmare.

But those people would need to be actual patriots–not self-protective cowards averting their eyes from Trump’s all-too-obvious lunacy and the existential global danger he poses.

And from where I sit, today’s GOP doesn’t have any patriots.

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