Author Archives: Sheila

What “Separation of Powers”?

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…

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That Pesky Thing Called Reality

There’s an old adage that counsels us to be careful what we wish for.

Before our mad king’s ascension to a second term, lots of Americans held negative views of immigrants. Political pundits attributed a good deal of Trump’s support to his promise to rid the country of these terrible people, the majority of whom (he asserted) were criminals and rapists.

That’s one promise the Trump administration is trying to keep, unlike its promises to curb inflation and cut out government “waste and fraud.” ICE has sent masked, armed enforcers after those nefarious lawbreakers–well, really, after everyone who “looks” undocumented (basically, engaging in racial profiling, yet another Trump administration unconstitutional practice).

So, how much has the keeping of that promise– the delivery of a result that MAGA folks ardently wished for–increased support for the administration? Strangely enough, it turns out that reality has punctured the always dishonest portrayals of America’s undocumented immigrants.

Gallup polling has charted that unanticipated turnaround:

Just months after President Donald Trump returned to office amid a wave of anti-immigration sentiment, the share of U.S. adults saying immigration is a “good thing” for the country has jumped substantially — including among Republicans, according to new Gallup polling.

About 8 in 10 Americans, 79%, say immigration is “a good thing” for the country today, an increase from 64% a year ago and a high point in the nearly 25-year trend. Only about 2 in 10 U.S. adults say immigration is a bad thing right now, down from 32% last year.

What has caused the shift? 

Well, first of all, despite Trump’s dishonest descriptions of an “invasion” of undocumented criminals, it turns out that there really aren’t many criminals out there. Experts have calculated that there may be–at most– only around 78,000 undocumented immigrants with any sort of  criminal record, and of that number, only 14,000 have been convicted of violent crimes. Given Stephen Miller’s demand that ICE arrest 3,000 people a day, ICE has turned its attention to farm workers and day laborers.

For example, multiple media sources have confirmed that the great majority of detainees held at Alligator Alcatraz, the immigration detention center (concentration camp) built in the Florida Everglades, do not have criminal records or charges pending against them in the U.S. — despite Donald Trump claiming the facility would hold “the most vicious people on the planet.”

For that matter, in the case of immigrants who do have records, most of those records are for immigration violations, which are technically civil offenses.

Business owners–especially landscape companies, construction companies and restaurant/hotel owners–have lost significant segments of their workforces, as ICE has rounded up workers who may have been undocumented but who were anything but dangerous criminals. Grocers (and their customers) are dealing with increased prices, as farmers have lost numerous undocumented workers who picked their crops.

And as ICE has moved to deport their friends and neighbors, many more Americans have come to recognize the indiscriminate cruelty of these sweeps. It turns out that abstract promises about ridding the country of undocumented criminals is conflicting with the reality of these roundups.

Masked ICE agents have refused to show ID as they continue to engage in a variety of offensive and unconstitutional behaviors, sparking outrage.

Not only have ICE “enforcers” engaged in racial profiling, “immigration enforcement” is increasingly being used as a barely-veiled cover for efforts to chill the exercise of free speech. Columbia University student, Mahmoud Khalil, was detained by ICE, his student visa revoked, and he was threatened with deportation– not for criminal activity, but for involvement in pro-Palestinian protests. His arrest was widely–and accurately– seen as a part of Trump administration efforts to crack down on student activism. Another widely reported example was the arrest of Rümeysa Öztürk, a 30-year-old Tufts University student. She was taken off the street by masked ICE agents near her home. A court subsequently determined that her arrest had been prompted by her co-authorship of an article about the ongoing war in Gaza. 

There’s much more.

The bottom line is that there is a difference between fantasy and reality. When political promises are based on “alternate realities,” the effort to fulfill them can become an (unintentional) educational exercise. 

It turns out that the American economy is heavily dependant on immigrants, both documented and “illegal.” It turns out that constitutional guarantees for everyone are weakened when an administration decides that some people aren’t entitled to them.

It turns out that immigration enforcement is “more complicated than that,” and that pesky realities are significantly different from the racist fantasies that spawned them.

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Texas Again

Texas really should serve as the primo example of a thoroughly UnAmerican state, a first-place spot that has been occupied until now by Florida. Granted, Florida won’t give up its win without a fight, and DeSantis’ success in turning Florida into a quasi-fascist state is impressive in a horrifying sort of way. But Texas is a worthy competitor.

We’ve all seen the death and destruction that accompanied the recent floods, and while Trump’s inept administration contributed significantly to the tragedy, the refusal to provide adequate warning mechanisms was a state and local decision. That bit of bad governance shouldn’t have come as a surprise; the administration of Governor Abbott–an administration that includes the state’s slimy Attorney General Ken Paxton and a GOP-dominated legislature–has diligently followed the MAGA (and Florida) playbook.

A few examples:

As enthusiastic participants in MAGA’s war on education, Texas has passed laws restricting expressive conduct on public campuses—banning protests and reassigning governance authority from faculty to politically appointed boards.

In its zealous war on immigration, Operation Lone Star has used razor wire and troop deployments, and engaged in mass busing of migrants to so-called “sanctuary cities.” The state also created state-level crimes for illegal entry and empower state judges to deport migrants–measures even the very conservative Fifth Circuit ruled unconstitutional.

Texas has enthusiastically fought the culture war: banning abortion, banning gender-affirming treatment for minors, and threatening medical professionals with license revocation.

Texas Republicans have eliminated Diversity, Equity & Inclusion efforts wherever possible, and removed such offices from public universities.

The state passed a law restricting content moderation on social media (an effort that has been temporarily blocked).

Because cities have a tendency to vote Blue, Texas passed what has been dubbed a “Death Star” law, restricting the powers of municipal governments to pass progressive policies. (A Travis County judge struck it down as unconstitutional interference in local self-governance.)

The Texas GOP’s Christian Nationalists won passage of a senate bill 10 requiring display of the Ten Commandments in public school classrooms.

Given the fact that many of these efforts have been stymied by courts noting their inconsistency with that pesky constitution, Abbott is emulating Trump; The Houston Chronicle recently accused Abbott of judicial appointments intended to reshape the Texas Supreme Court in his image.

It isn’t just the Texas Supreme Court. The Lever recently published an expose of a new kind of “court packing” in the great state of Texas.

On Sept. 1, Texas is slated to open its new business courts, a brand-new legal system backed by Big Oil — and several of the court’s main judges have in the past represented fossil fuel companies as lawyers, The Lever has found.

The judges were hand-picked over the last two months by Texas Republican Gov. Greg Abbott, a major recipient of oil industry cash — and many can be quickly replaced if they hand down decisions he opposes, a judicial design that he championed.

The courts consist of 11 regional business courts and a new statewide court of appeals to hear appellate litigation, which are expected to have immediate impacts on environmental cases in the state. As Public Health Watch, an independent investigative news organization, reported last month, a suite of cases involving state environmental authorities will now be transferred from a generally liberal appeals court to the state’s new Fifteenth Court of Appeals, created to oversee the business courts.

There, these cases will be decided by a panel of conservative judges historically friendly to industry — particularly oil and gas interests, a powerful force in Texas.

As a leader of the state’s Public Citizen organization put it, Abbot has created a “boutique court for corporations where he, not the voters, gets to pick the judges.” The article goes into some detail about the judges who have been appointed–details unlikely to comfort litigants who might be hoping for dispassionate judicial conduct.

For the past several years, pundits have predicted a revolt by Texas voters sufficient to turn the state purple, if not Blue. Extreme gerrymandering has forestalled that revolt, if indeed it was imminent, and as I posted a few days ago, Abbott has now called for a mid-cycle redistricting–a move urged by Trump as a means to maintain GOP control of the House of Representatives.

Political experts are dubious about the tactic. As Politico has explained,

The thoroughness of Texas’ gerrymander during the last round of redistricting in 2021 leaves no room for Republicans to grow their 25-member majority among the state’s 38 seats in the House of Representatives. Any alteration of the map will only hurt the GOP’s sitting incumbents and comes with a risk of backfiring.

We can only hope.

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It’s All About Bigotry

When Trump was elected in 2016, I was regularly reprimanded for insisting that MAGA was all about racism. People kinder than me (and that’s a lot of people) wanted to see MAGA voters as folks voting pocketbook issues, not as a re-emergence of the Confederacy or KKK.

The political science research that just keeps coming, however, supports my much less polite analysis. 

Let’s face it: we are fighting a new version of the Civil War. This time, the people who stand to benefit most from defending  bigotry aren’t the owners of plantations–they are the plutocrats and grifters dismantling the American system for profit–but like those plantation owners, our contemporary would-be overlords are using racism to enlist the support of a population desperate to believe that their religion and/or skin color makes them superior.

The evidence is overwhelming. There are the efforts to erase that hated DEI, the constant war on “woke-ism,” and the very unsubtle movement to substitute nationalist mythology for accurate history.

A recent example: An administration that has hollowed out the ranks of rangers who tend our national parks is now insisting that those who remain scrub park gift shops of “corrosive ideology.”

Remaining staff members have been ordered to report the presence of any retail item that “inappropriately disparages Americans past or living” or that includes in its description “matters unrelated to beauty, abundance or grandeur.” (It will be interesting to see how park leaders follow the administration’s directive in parks established to pursue an individual mission–for example, parks created to inform the public about the civil war, Indigenous history, slavery or other topics the Trump administration considers “defamatory” of historical Americans.) 

Hardly less obvious is the scorn and contempt constantly heaped by MAGA on urban America. As Paul Krugman has recently–and accurately–noted, these ugly assaults on the nation’s cities are both vile and dishonest–and all about bigotry. What really bothers MAGA about urban life is the idea that non-white people are exercising political power.

After Mamdani won New York’s Democratic primary, Treasury Secretary Scott Bessent declared that New York is about to turn into “Caracas on the Hudson.” As Krugman observed,

Bessent isn’t really deeply worried about Mamdani’s economic ideas. But he feels free, maybe even obliged, to slander a foreign-born Muslim with language he would never use about a white Christian politician, even if that politician were (like some of his colleagues in the Trump administration) a total crackpot.

Krugman points to the resurgence of raw racism emanating from the Trump administration. That racism is apparent in the cuts at the National Institutes of Health, which are

so tilted against racial minorities that a federal judge — one appointed by Ronald Reagan! — declared he’d never seen a record where racial discrimination was so palpable. You can see it in the renaming of military bases after Confederate generals — that is, traitors who fought for slavery. You can even see it in a change in the military’s shaving policy that is clearly custom-designed to drive Black men — who account for around a quarter of the Army’s new recruits — out of the service.

One problem with bigotry is that it feeds on itself. The definition of “my tribe” contracts. We saw it in Nazi Germany, where–as Martin Niemoller famously wrote, eventually there is no one left to “speak out for me.” As Krugman writes,

Now, maybe you imagine that you yourself won’t suffer from this new reign of bigotry and imagine that everyone you care about is similarly safe. But if that’s what you think, you’re likely to face a rude awakening.

I personally don’t have any illusions of safety. Yes, I’m a native-born white citizen. But my wife and her family are Black, and some of my friends and relatives are foreign-born U.S. citizens.

Furthermore, I’m Jewish, and anyone who knows their history realizes that whenever right-wing bigotry is on the ascendant, we’re always next in line. Are there really people out there naïve enough to believe MAGA’s claims to be against antisemitism, who can’t see the transparent cynicism and dishonesty?

The fact is that the Trump administration already contains a number of figures with strong ties to antisemitic extremists. The Great Replacement Theory, which has de facto become part of MAGA’s ideology, doesn’t just say that there’s a conspiracy to replace whites with people of color; it says that it’s a Jewish conspiracy.

There really is no “middle ground” between White Christian Nationalism and the American Idea.  Which of those will prevail is what this iteration of the Civil War is all about.

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Texas

Coverage of the horrific floods in Texas has dominated the media for several days–first, with videos and descriptions of the devastation and reports of the growing numbers of dead and missing, and more recently, with emerging evidence of governmental failures that undoubtedly cost lives by delaying both effective warnings and responses.

According to numerous media reports, local officials had been told repeatedly over a number of years that the area needed a better warning system, including sirens. But this was Red Texas, which–like Red Indiana–is a state governed by lawmakers congenitally allergic to taxation and dismissive of the common good. Local and state officials refused to spend tax dollars to pay for improving the warning system.

Worse, according to the Washington Post, the county had technology to turn every cellphone in the river valley into a blaring alarm, but local officials didn’t use it before or during the early-morning hours of July 4 as river levels rose to record heights. County officials did eventually send text-message alerts that morning, but only to residents who had registered to receive them.  According to the Post’s review of emergency notifications that night, county officials did not activate a more powerful notification tool they had previously used, even as federal meteorologists were warning of catastrophic flooding.

As usual, the cuts made by DOGE–ostensibly to “waste and fraud”–were also implicated in the tragedy. Thanks to indiscriminate cuts by people who had no understanding of the systems they were devastating, the National Weather Service was short-staffed. Its forecasting evidently remained accurate, but the job of “warning coordination,” the position responsible for transmitting  information from the forecasts to relevant local officials — was vacant.

FEMA’s reduced staffing–including terminated contracts for call-center operators–also deepened the crisis by delaying relief efforts for several days. Phone calls weren’t answered–indeed, according to media reports, response rates declined from nearly 100% to just over 5% on July 7.

And then there was the further delay caused by Kristy Noem, one of the members of Trump’s inept cabinet (appointees who confirm the accuracy of my favorite protest sign: “IKEA has better cabinets.”) According to CNN, Noem recently enacted a sweeping rule requiring every contract and grant over $100,000 to obtain her personal sign-off before any funds can be released–a rule displaying a total lack of understanding of the agency’s function and mission.

For FEMA, where disaster response costs routinely soar into the billions as the agency contracts with on-the-ground crews, officials say that threshold is essentially “pennies,” requiring sign-off for relatively small expenditures.

In essence, they say the order has stripped the agency of much of its autonomy at the very moment its help is needed most.

“We were operating under a clear set of guidance: lean forward, be prepared, anticipate what the state needs, and be ready to deliver it,” a longtime FEMA official told CNN. “That is not as clear of an intent for us at the moment.”

For example, as central Texas towns were submerged in rising waters, FEMA officials realized they couldn’t pre-position Urban Search and Rescue crews from a network of teams stationed regionally across the country.

Noem didn’t authorize FEMA’s deployment of Urban Search and Rescue teams until some 72 hours after the flooding began. 

Of course, the overall lack of preparedness, both locally and nationally, was enabled and abetted by the GOP’s widespread denial of the reality of climate change. (What’s that saying? “Reality doesn’t care if you believe it or not…”)

I wonder whether those MAGA Texans who enthusiastically supported Trump are delighted with the administration’s destruction of that hated “deep state,” filled with “elitists” who actually knew what they were doing. Are they applauding the substitution of lily-White ignoramuses for those despised (and credentialed) “DEI hires”? 

And predictably, In the wake of this enormous tragedy, Texas Republicans are adding insult to injury. Rather than exacting consequences for the glaring ineptitude of various state and federal officials, Texas has moved to further protect them from any possible voter retribution. Governor Greg Abbott has announced that mid-decade redistricting will be taken up during the state’s upcoming special session. The move is in response to White House pressure; Texas Republicans have been urged to redraw the state’s congressional districts ahead of the 2026 midterm election in order to protect the party’s slim majority in the House–a majority delivered via the GOP’s previous gerrymandering.

Welcome to MAGA’s version of democracy. Are we great yet? 

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