Category Archives: Constitution

A Different Kind Of Coup

Remember Darth Vader–aka Dick Cheney–and his theory of the “unitary executive”? Cheney wasn’t the only devotee of expanded power for the Presidency–it turns out that William Barr is a true believer, and far more dangerous than most of us previously realized.

A recent article in the American Prospect is chilling.

I have Article II, where I have the right to do whatever I want as president,” Donald Trump said in a recent speech to a far-right-wing campus organization. Trump is not a constitutional scholar, and he would not care at all about “constitutional architecture” were he not president. So where did this sweeping claim to executive power come from?….

But for Trump’s attorney general, William Barr, and others on the right, the effort to take power for the president from the courts and especially from Congress has been a 40-year project. Barr and his comrades may find statements like “I have Article II” crass and narcissistic, but in their view Trump is generally correct. Executive power maximalists argue that the “original intent” of the framers of the Constitution was to create a strong president with concentrated power and a largely advisory Congress.

The author notes that the most dangerous presidential power–and one that Trump’s lawyers are currently asserting– is the power to withhold information from Congress and the American people.

Neither Congress nor the courts nor voters can effectively check power abused in secret. And Congress’s power to require information from the president may be the power most difficult to reclaim if Congress yields that power in a tactical retreat in advance of the 2020 election.

Evidently, the expansion of presidential power–and the corresponding evisceration of Congressional authority–has been a 40-year mission for William Barr.

Barr (one of the original founders of the Federalist Society) worked in the Reagan White House with a group of lawyers who argued that the presidency had improperly lost constitutional powers after Watergate. Edwin Meese even asserted that the president could disregard Supreme Court decisions with which he disagreed.

Even very conservative legal scholars consider these assertions unfounded, and there is virtually nothing in the historical record that would support them. (The entire point of  “checks and balances” was to thwart an internal “coup” that would turn the president into either a monarch or a servant of Congress.)

After efforts by Reagan’s lawyers to challenge Congressional oversight failed in the Supreme Court,

Barr wrote and circulated throughout the executive branch a militant memorandum entitled “Common Legislative Encroachments on Executive Branch Authority.” The memo called for aggressive challenges to Congress’s claims to authority: “Only by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved.”

As the author notes,

The bread and butter of congressional oversight of the executive branch is to examine executive branch actions and the reasons for those actions. According to Barr, none of that is any of Congress’s business.

Throughout his Executive Branch service, Barr–together with Cheney– has insisted that the President can ignore not only Congressional demands for information, but laws with which he disagrees.

The entire article is worth reading, because it gives needed context to the otherwise inexplicable behavior of William Barr today–behavior that is causing significant morale problems among the professionals at DOJ.

The following paragraphs are representative.

BARR WAS OUT OF GOVERNMENT through the Clinton, George W. Bush, and Obama presidencies, but remained a constant presence in rightist legal circles. On June 8, 2018, Barr sent an unsolicited memo to Rod Rosenstein, the deputy attorney general to whom Robert Mueller then reported, and to Steve Engel, who headed the OLC, entitled “Re: Mueller’s ‘Obstruction’ Theory.” Trump’s firing of Jim Comey as director of the FBI could not be obstruction of justice regardless of Trump’s motives, Barr argued, because the president’s power to remove executive branch officials is “illimitable.”….

BARR AND OTHERS ON THE RIGHT have sought relentlessly for four decades to concentrate power in the president and strip power from Congress. Barr’s legal arguments sound haughty and scary to all but the most ardent Trump supporters. But Barr is committed to presidential power with or without legal authority and with or without public support. And he will advance presidential power by any means necessary, which includes frivolous legal arguments and dilatory tactics forbidden by court rules and canons of legal ethics, and false testimony forbidden by criminal law.

I can’t imagine what philosophy of government would lead someone to Barr’s conclusions, but it is abundantly clear that he represents a clear and present danger to the Constitution as it exists, and to the Separation of Powers it clearly requires.

His attacks on separation of church and state are equally dangerous, but that is an issue for another day…

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What Is The Remedy For A McConnell?

An article I read in Vox a month or so ago has continued to bother me. The subject-matter was summed up in the sub-head: “The political system has an answer for a threat like Donald Trump, but none for a threat like Mitch McConnell.”

If Trump often acts like he is above the law, it is only because McConnell lets him. If McConnell decided to lead Senate Republicans in investigating and curbing Trump’s corruption, abuses of power, and obstruction of justice, Trump’s options would be to reform his behavior or be ejected from office.

The article goes on to make a point that is so obvious it is often overlooked. Despite their  differences (McConnell is evil, calculating and smart, Trump is mentally disordered, undisciplined and stupid) they do have one thing in common. They are both utterly shameless.

At the core of this is McConnell’s peculiar form of political shamelessness. This is the way McConnell and Trump are more similar than is often appreciated: they have both proven that the range of political action is disciplined less by external constraint than by a politician’s sense of shame — the degree to which they turn back in the face of public criticism, media opprobrium, elite backlash.

It was shamelessness, for instance, that let McConnell refuse to hold a hearing on Merrick Garland and then, grinning, admit that he’d fill a Supreme Court seat if one came up in 2020. McConnell’s predecessors held the same power he did and none of them attempted that maneuver. They weren’t restrained by laws or rules. They were restrained by temperament and a belief that to break the system was to betray the public.

When political scientists talk about “democratic norms,” it is the restraints of temperament and fidelity to tradition and rules that they are referencing.  McConnell has demonstrated his rejection of political accountability, and the system has no mechanism for dealing with someone who acts as if the rules simply don’t apply to him.

The Founders designed our form of government with demagogues in mind. That’s why the president is checked by Congress, up to and including the threat of removal. But they believed that Congress would consider itself in competition with the president, that ambition would check ambition. They did not foresee the rise of political parties and the way that would bring parts of Congress into cooperation with the president, that ambition would protect ambition.

The political system has an answer for a threat like Donald Trump but none for a threat like Mitch McConnell.

McConnell isn’t simply ignoring duties imposed by the Constitution; he is– as the Vox article says–shameless. His actions defy our expectations of normal human behavior, not because he is breaking the rules in order to benefit himself (lots of people do that), but because he is publicly flaunting his violations and daring observers to do anything about them.

As Rochefoucauld said, hypocrisy is the tribute that vice pays to virtue. McConnell is withholding that tribute. He doesn’t even pretend to behave honorably; his entire, smug demeanor says “I’m demolishing longstanding norms and traditions because I can and there is nothing any of you can do about it.”

The only remedies available are political: McConnell could lose his Senate race in 2020, or Democrats could take the Senate, removing his authority to do significant damage. Given that he represents Kentucky, the first is unlikely. (Possible, but unlikely.)

The second, I submit, is mandatory. Both he and Trump have to go, and only massive turnout will rid us of both of them.

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Why I Harp On Civic Literacy

In yesterday’s post, I listed elements of necessary political reform, beginning with reinvigorated civics instruction in the public schools.

I would understand if regular readers of this blog shrugged and attributed that particular item in the list to my abiding preoccupation with the importance of what I call “civic literacy.” Civic literacy isn’t civic engagement–important as that is. It is knowledge of America’s history, philosophy and basic legal structure.

When civic ignorance is rampant, Donald Trump can dismiss the Constitution’s Emoluments Clause as “phony” without losing the support of his base. He can repeatedly act in ways that are inconsistent with the Constitution and rule of law, and be defended by Congressmen who are confident that their constituents don’t know any better.

But civic ignorance has consequences that go well beyond Trump. I harp on the importance of basic civic knowledge because I believe it is connected to everything else that ails us–especially the growth of “identity politics,” or tribalism. I addressed that relationship in my recent book; the following paragraphs are what I wrote there, and may explain why I continue to be preoccupied with the issue.

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One of the most overlooked connections, and one that makes sensible reforms so difficult, is between low levels of civic literacy and tribalism.  American citizens do not share a political history, a common religion, or a single race or ethnicity. In some precincts, citizens don’t even speak the same language. In the absence of cultural and linguistic ties, societies require what Robert Bellah called a “civil religion” through which to forge a common civic identity. In the United States, that civil religion has centered upon our constituent documents—the Declaration of Independence, the Constitution and the Bill of Rights—and the governing philosophy they embody, what I have elsewhere called “The American Idea.”

The tribalism fed by inequality and social media grows more pronounced in the absence of civic literacy. When Americans are ignorant of the history, philosophy and evolution of their constitutional form of government, they may share a common national geography, but they don’t share a civic identity. The absence of a common “civic religion” translates into widespread neglect of an important civic obligation, the duty to be sufficiently informed to evaluate government’s conduct of the people’s business.

Public accountability requires that those in power be forthright and detailed about laws they have enacted and other actions they have taken; it requires journalists who can adequately and accurately convey that information to the general public; and it requires citizens able to compare those laws and activities to the standards prescribed by the U.S. Constitution and Bill of Rights. The ability to discharge all of these tasks depends upon a basic familiarity with the nation’s history, philosophy and legal framework.

The widespread deficit of civic knowledge is not simply an impediment to personal efficacy and participation in the democratic process; it is evidence of a fundamental failure of public education. Civic ignorance impedes communication between Americans, and between Americans and their policymakers. It facilitates susceptibility to spin and propaganda. The loss of civic literacy is not confined to the voting public; American politicians on all points along the political spectrum constantly genuflect to the Constitution, and just as constantly disclose a lack of genuine (or often, even superficial) familiarity with it, let alone the two hundred plus years of jurisprudence applying its principles to ever-changing “facts on the ground.” The result is a lack of a common frame of reference that makes productive political action impossible.

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Are We Americans?

I recently participated in a session of “Cocktail Judaism”—an activity sponsored by Indianapolis congregation Beth El Zedeck for members interested in exploring current issues in the context of Jewish values. The environment is informal; congregants meet at a local restaurant on a weekday evening, and various “experts” are invited to lead the discussion.

On this particular evening, I shared the microphone with my more knowledgeable cousin, Jeff Smulyan, CEO of Emmis Communication. We were asked to facilitate a discussion revolving around a question posed by Rabbi Dennis Sasso: What does it mean to be an American, and how will the answer to that question matter to the 2020 election?

I argued that–at the very least—being American requires understanding, supporting and protecting two essential elements of our country’s version of liberal democracy–majority rule and its libertarian brake, aka the Bill of Rights.

In order to protect the legitimacy of U.S. government, we need to address the escalating assaults on majority rule: Gerrymandering (the practice whereby legislators choose their voters, rather than the other way around); the growth of vote suppression tactics (everything from voter ID laws to the spread of disinformation); the disproportionate influence of rural voters thanks to the operation of the Electoral College; the current (mis)use of the filibuster, which now requires a Senate supermajority to pass anything; and the enormous influence of money in politics, especially in the wake of Citizens United.

In order to protect individual liberty– i.e., the constraints on majority rule required by the Bill of Rights and the 14th Amendment–we need to reinvigorate and protect the libertarian principle that animated the nation’s Founders: the right of all people to live as they see fit, so long as they do not thereby harm the person or property of others, and so long as they are willing to grant an equal liberty to others. That “live and let live” principle doesn’t just  require us to limit government over-reach; it requires that we combat racism, anti-Semitism, homophobia, misogyny, Islamophobia…all of the “isms” that deprive some citizens of equal civic status and that deny them the full expression of their individual liberties.

Understanding and protecting both majority rule and individual rights requires an informed citizenry–and an all-out assault on civic ignorance and apathy.

In response to a question from Jeff, participants indicated their concerns about a wide range of issues: gun control, the environment, health care, reproductive rights, the Supreme Court…an important litany with which we’re all familiar. These are all, admittedly, absolutely critical issues.

That said, I’ve become increasingly convinced that 2020 is about America’s structural and systemic distortions—that our first order of business must be to confront the misuses of power that make fair and productive political debate about substantive issues impossible. These failures of American governance need to be addressed before any of the policymakers we elect will be able to discuss, let alone pass, rational, evidence-based policies.

You can’t drive a car if it’s lost its wheels, and you can’t govern if your institutions have lost their legitimacy.

Unless the systems are fair, no minority of any sort–political, religious, racial, economic–is safe.

America’s Constitution was all about checks and balances and the rule of law. Until we eliminate systemic corruption and return our government to those foundational operating  principles, we aren’t Americans—we’re just an assortment of contending constituencies who happen to occupy the same nation-state.

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Abortion, Free Speech And Crime

It turns out there really is no such thing as a “single issue.” Life and reality are complicated. And inter-related.

Leave aside, for purposes of today’s discussion, the inconvenient historical research confirming that the real impetus of the “pro-life” movement was the desire to protect segregation, not fetuses. Leave aside also the breathtaking hypocrisy of people who obsess over those “unborn babies” but are entirely unconcerned about toddlers in cages at the border, the children drinking unsafe water in Flint and elsewhere, the children without enough to eat….Etc.

Let’s just talk about those dots we Americans don’t like to connect.

Let’s begin with free speech. Almost everyone claims to be a staunch believer in free speech–until, of course, someone is saying something with which they disagree, or even worse, fails to say something we want them to say. In North Dakota, lawmakers have passed a law to “protect the unborn” by requiring doctors to lie to their patients.

That was a bridge too far even for the famously timid and nonpolitical American Medical Association.

One of America’s leading medical organizations has filed a lawsuit to block a North Dakota abortion law requiring doctors to tell women that a medication-induced abortion can be “reversed,” an assertion medical experts say is scientifically unsound.

The American Medical Association has joined the Red River Women’s Clinic, the last abortion facility in the state, and its medical director, Kathryn Eggleston, to argue that the law violates doctors’ constitutional right to free speech by forcing them to lie to patients. The plaintiffs also contest an existing provisionin North Dakota law that requires a doctor to tell a woman that the abortion will “terminate the life of a whole, separate, unique, living human being,” a statement they argue is ideologically biased and “forces physicians to act as the mouthpiece of the state.”

It’s the second time this year the AMA has sued over an abortion-related issue. In March, the organization filed a lawsuit in Oregon over a provision in the Trump administration’s new rules for the federal family planning program–rules that would, among other things, ban doctors and other health professionals from referring pregnant patients for abortions.

I can’t help wondering why we haven’t heard from all those opponents of national health care who are terrified of government control over their medical providers.

It isn’t just that efforts to deny women personal autonomy require intrusions–infringements–of other constitutional liberties. There are equally inconvenient sociological “dots” to connect as well.

Crime rates in the U.S. have fallen by about halfsince the early 1990s. A new working paperfrom the National Bureau of Economic Research finds that legalized abortion following the Supreme Court’s landmark Roe v. Wade decision in 1973 accounts for 45% of the decline in crime rates over the past three decades.

The paper’s authors, Stanford University economist John Donohueand University of Chicago economist Steve Levitt, take new data and run nearly the same model they used in their influential — and controversial — 2001 analysispublished in the Quarterly Journal of Economics, where they first suggested an association between abortion and crime.

In the 2001 paper, they found that legalized abortion appeared to account for up to half of the drop in rates of violent crime and property crime to that point. They also predicted crime would fall an additional 20% over the next two decades. Levitt featured the research in the 2005 bestseller Freakonomics. The new paper also looks at violent crime and property crime.

When you think about it–assuming you do think about it– it makes sense. As the authors put it, “unwanted children are at an elevated risk for less favorable life outcomes on multiple dimensions, including criminal involvement, and the legalization of abortion appears to have dramatically reduced the number of unwanted births.”

The authors examine crime in states that legalized abortion before Roe; crime in states with high and low abortion rates after Roe; differences in crime patterns in states among people born before and after Roe; and differences in arrest rates within states among people born before and after Roe.

If we really wanted to reduce the number of abortions, we would create a society that supported women and nurtured children–a society in which birth control was easily obtainable and babies were not additional, resented burdens to impoverished mothers.

But that might require connecting some dots……

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