Category Archives: Constitution

Poison Gas

I have repeatedly cited the observation by a noted civil libertarian to the effect that poison gas is a great weapon–until the wind shifts.

In case the clear meaning of that observation eludes anyone, it is a recognition that ignoring the rule of law in order to punish people you dislike is a very dangerous tactic, because when those disliked folks gain power–as they inevitably will– they can turn those same illegal tactics against you.

It is abundantly clear that Trump and his MAGA minions don’t understand the operation of due process guarantees. (Granted, Trump is embarrassingly ignorant of all civil liberties, and indeed, ignorant of how the world works.) That ignorance is shown by the increasing hysteria with which the administration keeps asserting that Abrego Garcia is “a bad dude,” and that bad dudes aren’t entitled to due process.

There is substantial evidence to rebut the administration’s accusations about Garcia, but their probity is totally irrelevant. Giving an accused individual due process requires that the government prove its allegations in a court of law. If Garcia is really a gang member or otherwise unfit to live among us, the state should be able to demonstrate that fact. A grant of due process doesn’t keep authorities from expelling bad guys–but it does require government to provide the evidence upon which they are painting an individual as someone who should be expelled from our shores.

If a mere accusation is poison gas sufficient to justify deportation, none of us is safe. The accusatory finger can be pointed at anyone, for any reason. That’s why Talking Points Memo–among many others–has  editorialized about the extreme importance of this case.

As best we can tell, Abrego Garcia was on the third deportation flight from Texas to El Salvador on March 15. The other two flights contained people deported under the Alien Enemies Act without any judicial review. The AEA deportations were the first to be challenged in court, which led to the big blow up in U.S. District Judge James Boasberg’s court about whether the Trump administration had willfully violated his order blocking them.

It was in the midst of that legal battle that the case of Abrego Garcia’s mistaken deportation emerged, an error the Trump administration admitted, serving as the perfect signifier for why due process is so essential. If Abrego Garcia could be deported in error – and in violation of an existing order by an immigration judge – isn’t that precisely why the law offers procedural protections that all of the deportees that day were entitled to at some level?

TPM noted that the administration’s positions inside the courtroom have been at odds with its public statements. It  has gone from admitting the deportation was in error to the launch of “a full-scale propaganda campaign from the White House on down, sowing misinformation, inventing facts, smearing Abrego Garcia with falsehoods, and furiously trying to muddy the waters to obscure its own malfeasance.”

The editorial quoted Timothy Snyder, a noted scholar of tyranny:

The president defied a Supreme Court ruling to return a man who was mistakenly sent to a gulag in another country, celebrated the suffering of this innocent person, and spoke of sending Americans to foreign concentration camps.

This is the beginning of an American policy of state terror, and it has to be identified as such to be stopped.

Americans who have been following the news are aware that Garcia is only the most prominent example of extra-legal apprehensions and deportations, which have been accelerating under this lawless regime. This reality–among other Trump acts in defiance of the rule of law–has brought us to the current constitutional crisis, as the administration stonewalls and evades, and refuses to submit to court orders.

The Republicans in the House and Senate could end this crisis. Even if they failed to impeach the mad king, they could assert their powers under the Constitution and take back the authority that Trump has usurped–authority that is rightfully theirs. Their failure to do so–the cowardice preventing them from even publicly protesting Trump’s blatantly illegal, unconstitutional and immoral behaviors–is a betrayal of immense proportions. Assuming we emerge from the current abyss, these Republicans will go down in history as weaklings and traitors whose failure to honor their oaths is a repudiation of the values upon which this country was founded.

It will also be seen as an invitation to turn the poison gas in their direction when Democrats gain control. Of course, if that happens, we really will have lost the Founders’ America.

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Defending The Rule Of Law

As the Trump administration careens drunkenly from outrage to outrage, laying waste to the American Idea, there is one “through line” to the Dear Leader’s petulant and bizarre Executive Orders and (ungrammatical) pronouncements: virtually all of them violate the laws of the land. (My husband will read of some Trumpian action and ask me, “Can he do that?” and my response is usually, “It’s against the law, if that matters.”)

The Constitutional crisis we are currently experiencing is Trump’s disregard–not just for the laws he is ignoring–but for Court orders requiring him to obey them.

I don’t know how this crisis will turn out. I have hopes that the increasing numbers of protests will encourage at least some Republican Senators and Representatives to re-grow their spines (although here in Indiana,  Senator Jim Banks–a dim, smug self-proclaimed Christian Nationalist–is beyond hope). In the meantime, there are emerging signs that the legal community is prepared to defend the rule of law against our Mad King and his merry band of lunatics.

I was particularly pleased to read a Fourth Circuit Court of Appeals decision authored by Judge J. Harvie Wilkinson III, because it confirmed a point I’ve repeatedly made on this site: whatever descriptors you want to apply to Trumpism and MAGA, “conservative” isn’t one of them.

As Josh Marshall wrote at Talking Points Memo 

If you had told me in 2005 that 20 years hence federal appeals court Judge J. Harvie Wilkinson III would be writing a paean to our lost liberties and freedoms under a Republican president, I may have politely suggested you seek some help.

The entire order is worth reading. Wilkinson clings to the hope that the judiciary’s “brethren in the Executive Branch” will recognize that the rule of law is “vital to the American ethos.”

Wilkinson’s defense of the rule of law is being joined by individual lawyers. R. William Jonas, Jr., a partner in a law firm in Mishawaka, Indiana, recently shared the following letter he’d written to the Indiana Bar Association.

I write today as a member and Past President of the Indiana State Bar Association, and as an officer of the court who swore on Oct. 9, 1981, to support and defend the Constitution of the United States and the State of Indiana. To fulfill my oath, I write today in the wake of the decision of the U.S. Court of Appeals for the Fourth Circuit attached here.

The U.S. government “snatched” Kilmar Abrego Garcia from his home state of Maryland, and, in utter disregard of his constitutional right to due process and a specific court order, and transported him to an infamous prison in El Salvador where it is now claimed that he is beyond the power of our courts. We know from reading the Fifth Amendment that “no person shall be deprived of life, liberty or property without due process of law.” And “no person” means exactly that – it includes everyone from Jesus Christ and the twelve disciples to Jeffrey Dahmer, Ted Bundy, John Wayne Gacy or Gertrude Baniszewski.

 It is the duty of the Indiana State Bar Association, to speak in support of the opinion of the court and the right of due process which is at the very heart of the rule of law. Some might say that we should be silent because we shouldn’t be taking political positions or because it might cause people to terminate their memberships. To these folks, I say that we all have sworn to uphold the constitution and the rule of law. This association is rightly proud of its efforts to promote leadership through the Leadership Development Academy and civic education through the Indiana Bar Foundation’s civic education program “We the People: The Citizen and the Constitution.” If we remain silent, what message do we send about leadership? About civic duty? If not us, who? If not now, when?

              Judge Wilkinson wrote

It is, as we have noted, all too possible to see in this case an incipient crisis, but itmay present an opportunity as well. We yet cling to the hope that it is not naïve to believeour good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.

Now is the opportunity for the ISBA to speak up in support of the right to due process and the rule of law, and to urge the local bars of Indianapolis, Evansville, Allen County, Lake County and St. Joseph County to take similar action. It is an opportunity to urge the faculties of Indiana’s law schools to join the chorus – as Judge Wilkinson says “while there is still time.”

Now is the time for all of us to speak up–and resist.

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Why Government Grew

Among the many things that drive me up the wall (I’m close to the ceiling most of the time) is the common inability to distinguish between bigger government and inappropriately intrusive government. What the Founders feared was a government that invaded the individual liberties of citizens, not a government that established new agencies to deal with new problems.

This isn’t, I hasten to say, a misconception held only by Republicans. I still remember a friend who worked for the state during the Evan Bayh administration. His small agency was addressing the then-emerging problems of HIV. The federal government instituted a program that would have paid to place two more desperately-needed personnel in his agency–including the overhead costs of their employment. He was told he couldn’t take advantage of that program because Bayh didn’t want exposure to the accusation that state employment had increased during his term in office.

I think about that persistent bias against numerical growth–the very common inability to differentiate between the growth of power and authority and an increase in manpower–whenever I read about Musk’s determination to slash the size of government while blithely erasing limits on its authority.

A recent New York Times essay provided a perfect example of the difference–and a brief demonstration of how government growth occurs and why the Trump/Musk assault is so dangerous.

In the late 19th century, the government chemist Harvey Washington Wiley proved several shocking suspicions about the American food supply as correct: Milk was routinely thinned with dirty water, coffee contained bone, ground pepper was full of dirt, cocoa was packed with sand, and cayenne was loaded with brick dust.

The findings turned Wiley into a crusader for food safety, and by 1906 Congress finally agreed that regulations were needed. With the passage of the Food and Drugs Act and the Meat Inspection Act, the United States created the framework for a federal system to test ingredients, inspect food factories and recall unsafe products.

This system has been criticized as seriously underfunded and often overcautious. But it has prevented a return to the fraudulent and poisonous food supply of the 19th century, which one historian called the “century of the great American stomachache.” That is, until recently, when the Trump administration began to unravel that safety net.

When this nation’s Founders wrote the Constitution, most Americans still grew their own food. If mom wanted to cook chicken for dinner, she was likely to go out in the yard and wring the neck of one of her flock; if that chicken was ill, the consequences were her responsibility. When food preparation became an industry, responsibility for product safety became a communal issue. The representatives of We the People decided (properly, in my view) that government had an obligation to regulate that production.

Our mad king doesn’t recognize that responsibility, and we are all endangered by the heedless effort to reduce government employment and responsibility.

Along with its other ill-considered actions, the administration has been targeting food safety programs for “downsizing.” As the linked article notes, last month two Department of Agriculture advisory committees that had provided guidance on fighting microbial contamination of food as well as meat inspection protocols were simply shut down. (If that wasn’t dangerous enough, the administration also expanded the ability of some meat processors to speed up their production lines–a provision that makes it more difficult to carry out careful inspections.)

The administration also delayed a rule that would have required both manufacturers and grocery companies to quickly investigate food contamination and pull risky products from sale. At the start of April, thousands of federal health workers were fired on the orders of Health and Human Services Secretary Robert F. Kennedy Jr.; a plan called for terminating 3,500 employees at the Food and Drug Administration — a move that he welcomed as a “revolution.” Consumer watchdogs and others described it as a safety blood bath.

Of course, it isn’t just food safety. Or drug efficacy. The Founders didn’t envision an FAA, either. Forgive me for wondering whether the recent rash of air mishaps is connected to the “downsizing” of that agency. And while the MAGA morons dispute the reality of climate change–okay, the utility of science generally–the EPA also protects the water we drink and the air we breathe from industrial pollution, among other things that didn’t exist in the 1700s. The list goes on.

The threat to individual liberty doesn’t come from the employment of officials to monitor food and drug safety, or oversee air traffic. The threat comes from autocrats unwilling to respect the constraints of the Bill of Rights.

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Process And Progress

At a recent Town Hall in Indiana, Congresswoman Victoria Spartz responded to a citizen’s question/challenge by asserting that “people who break the law aren’t entitled to due process.” Spartz has a long history of ignorance and bizarre behaviors, but this particular example–while undoubtedly endearing her to an unconstitutional administration–reflected her incredible unfitness for public office.

Why is due process an essential component of the rule of law?

David French recently addressed that question in a New York Times essay,

The defense of civil liberties is hard even under the best of circumstances. Thousands of years of human history tell us that we are not naturally inclined to protect the rights of our opponents, much less the rights of people we believe to be violent and dangerous.

That’s why the defense of the Bill of Rights requires both practical and moral arguments. The practical defense is often the most effective: Protect the rights of others that you would like to exercise yourself. After all, one day you might not be in control.

In other words, poison gas is a great weapon until the wind shifts…

French goes on to argue that the best arguments for due process transcend self-interest–that due process guarantees protect “the inherent dignity and worth of every human being.” 

Americans have provided due process even to the nation’s wartime enemies. French quoted a federal judge for the travesty that Nazis had been given better treatment under the Alien Enemies Act than people suspected of being members of a Venezuelan gang.

Numerous media outlets have reported on the arrest and rendition of Kilmar Abrego Garcia, who was accused of gang membership and sent to prison in El Salvador. Abrego Garcia was in the U.S. legally, and in 2019 a court had barred the government from deporting him to El Salvador. An official of ICE admitted, under oath, that he’d been deported due to “administrative error,” but claimed the government couldn’t get him back “because he is no longer in U.S. jurisdiction.”

The judge found that “there were no legal grounds whatsoever for his arrest, detention, or removal…. [H]is detention appears wholly lawless” and “a clear constitutional violation.” 

If the government can simply assert–without the need to provide even flimsy evidence–that anyone they consider offensive or inconvenient is a “criminal,” then no one is safe.

America’s darker history is instructive: those most aware of the danger posed by lack of due process are the people who remember Jim Crow, when Black Americans in the South received less protection than the Nazis referenced by the judge. 

A guest essay in the New York Times made that point graphically. 

There’s something about this moment that is shocking to many in my orbit. Watching a security camera video of a graduate student — from Tufts, my alma mater — who is legally in the country being picked up in broad daylight by masked government agents and hustled into an unmarked car. Witnessing people lose their jobs with no warning or justification. The presumption underlying these attacks on diversity, equity and inclusion programs that somehow only white men are qualified to do many jobs. Denying lawyers access to federal buildings so they can’t represent their clients properly. Seeing communities from Cincinnati to El Paso live in a state of fear from the police and bands of vigilantes.

“How can this be happening in America?” these people ask. “This is not the country I know, the country of rights and laws and due process.”

Needless to say, these people are almost all white and liberal and are not used to feeling this fear of arbitrary, brutal state authority. But this moment, the one that was explicitly promised by Project 2025 and Donald Trump when he was a candidate, looks a lot like what my grandmother experienced every day for much of her life.

What Indiana’s civically-illiterate Congresswoman fails to understand is that due process for people accused of criminal activities is a foundational concept in the U.S. Constitution. It is a principle of fundamental fairness–a requirement that  government  demonstrate an accused’s guilt with probative evidence before imposing punishment.

Adherence to due process for everyone is what makes social progress possible. It is what protects Americans against the would-be autocrats who want to run roughshod over the individual liberties of those who oppose them. 

Due Process is mentioned twice in the Constitution — in the Fifth and Fourteenth Amendments, both of which prohibit government officials from depriving an individual of “life, liberty, or property without due process of law.” 

Free speech and due process stand in the way of Project 2025. We need to defend them from MAGA’s ignorance and malevolence. 

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About Those Executive Orders…

I spent 21 years teaching college students about law and public policy–about the limits that a country’s legal framework imposes on the policies that legislators can legitimately consider. For a significant portion of those years, I was also an annoying scold, ranting about the undeniable fact that most Americans were uninterested in and unaware of the provisions of the constitutional framework that constrain what American government can legally do.

We are now reaping the consequences of that massive constitutional ignorance.

A would-be dictator has taken residence in the Oval Office, and has proceeded to ignore the legal restraints on presidential power. Given his intellectual deficits and manifest ignorance, it is very likely that he is as unaware of those restraints as he is of the American Idea–the underlying philosophy of the Constitution–and of the basic operations of government. (I doubt he could even spell philosophy, given his third-grade vocabulary.)

I have previously cited the constitutional provisions vesting Congress with exclusive authority over many of the areas Trump purports to “rule” with his firehouse of Executive Orders. Such orders have a limited provenance; as  Josh Marshall explained on Talking Points Memo a while back explained more clearly than I have.

Most people, including a lot of journalists, don’t understand what an executive order even is. It’s not a law or even a quasi-law. An executive order is really just a memo from the president to his staff (in this sense, his staff of two million civil servants) to take certain actions. Do this and don’t do that. Enforce this law in that way. Those can be actions the Constitution empowers him to take or ones Congress specifically assigns to him through laws. I interpret the law this way, so take this action, etc. In areas where presidents have a lot of power — say, in border and immigration enforcement, for instance — executive orders are a big deal. Courts can say: no, the law or the Constitution doesn’t empower you or allow you to do those things. But executives act and courts mostly react. So in this area of broad executive power, they’re a big deal. That’s also where you get into the territory of genuine constitutional crises and potential presidential dictatorship, because the outer limits of some of those powers aren’t clearly charted.

In other areas–very much including election administration–an Executive Order is flat-out unconstitutional.

But presidents have little to no power over election administration. States administer American elections, for state and federal office. Congress is empowered to create certain baseline rules for how states administer elections, in addition to those enumerated in the Constitution. But that’s the federal role — a critical fact under present circumstances, as I noted a week ago. The president has very little power beyond having the Justice Department bring lawsuits over claimed constitutional infractions or failure to follow federal law. In other words, an executive order on election administration is mostly meaningless — and this is the case for multiple reasons…. Elections are administered by state officials and they are part of a separate, untethered sovereignty. The U.S. president can’t fire a governor or a mayor, ever. Federal law is supreme over state law. That makes states subordinate to but still not at the command of the president. They’re separate sovereignties. It is as though the tendons or draw-wires that connect a head of state down to local government in a unitary state have simply been severed in a federal one. He doesn’t just lack the authority. He lacks the power. As I explained Monday, the real issue is going to come when the president tries to use his unauthorized power to extort compliance by withholding money.

As Marshall notes, it’s one thing when most Americans don’t understand this; it’s close to unforgivable when most journalists don’t–when they cannot even offer clear descriptions of how the mechanics of government are actually supposed to work.

We are, as he says, “ten years in,” and yet Trump is still able to project an authority he very clearly does not possess. His ability to do so is a direct consequence of civic illiteracy–not just the public’s lack, but that of a worrisome percentage of the media. And when cowardly Republican office-holders are joined by cowardly law firms and universities that have bent to financial extortion, and by plutocrats willing to trade the stable governance that made their riches possible for an autocrat’s promise of special treatment…constitutional limits evaporate.

Civic ignorance has consequences, and we’re experiencing them.

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