Category Archives: Constitution

So Long, America–It Was Nice Knowing You…

The New York Times summarized the rogue Supreme Court’s immunity ruling in a sentence: “the Supreme Court has extended sweeping legal protections to presidents that apply to no one else in the country.”

In other words, in the most recent of a string of appalling and unprecedented rulings, this disgraceful Court has eviscerated the essence of the rule of law: that no one is above the law. Sources close to the Rightwing extremists behind Project 2025 immediately began planning how to use the Court’s decision to help them implement their unAmerican policy agenda, and Trump immediately called for jailing his political opponents.

The Court has demonstrated the naiveté of those Republican voters who justified sticking with Trump because “there are guardrails–laws that will keep him from doing the craziest shit.” Not anymore, there aren’t.

Toto, we aren’t in Kansas anymore.

I have never been so afraid for my country. Lest you think I am over-reacting, I will turn the rest of this post over to the considered reactions of people I respect.

There were the pundits, of course, many of whom bring solid legal credentials to the discussion. I can sum up their reactions by citing to Washington Post columnist Ruth Marcus, whose opinion piece was titled “God Save Us from this Dishonorable Court” and was subtitled “An egregious, unconscionable ruling on presidential immunity from the Supreme Court.”

But the most incisive and horrified analyses came from the scholars. 

Historian Heather Cox Richardson wrote:

This is a profound change to our fundamental law—an amendment to the Constitution, as historian David Blight noted. Writing for the majority, Chief Justice John Roberts said that a president needs such immunity to make sure the president is willing to take “bold and unhesitating action” and make unpopular decisions, although no previous president has ever asserted that he is above the law or that he needed such immunity to fulfill his role. Roberts’s decision didn’t focus at all on the interest of the American people in guaranteeing that presidents carry out their duties within the guardrails of the law….

There is no historical or legal precedent for this decision. The Declaration of Independence was a litany of complaints against King George III designed to explain why the colonists were declaring themselves free of kings; the Constitution did not provide immunity for the president, although it did for members of Congress in certain conditions, and it provided for the removal of the president for “high crimes and misdemeanors”—what would those be if a president is immune from prosecution for his official acts? The framers worried about politicians’ overreach and carefully provided for oversight of leaders; the Supreme Court today smashed through that key guardrail…

Today, observers illustrated what Trump’s newly declared immunity could mean. Political scientist Norm Ornstein pointed out that Trump could “order his handpicked FBI Director to arrest and jail his political opponents. He can order the IRS to put liens on the property of media companies who criticize him and jail reporters and editors.” Legal analyst Joyce White Vance noted that a president with such broad immunity could order the assassination of Supreme Court justices, and retired military leader Mark Hertling wrote that he was “trying to figure out how a commander can refuse an illegal order from someone who is issuing it as an official act.” 

Lawyer and legal scholar Robert Hubbell minced no words:

Today, the Supreme Court overthrew the American Revolution and anointed the US president as a modern-day king. Their betrayal of the American revolutionaries, Founders, and Framers is all the worse because they did so to promote the most corrupt, dangerous, depraved person to disgrace the office of the presidency…

Trump v. United States will be overruled. The decision is so bad it will not stand. Like Dred Scott (holding that enslaved people are not citizens entitled to judicial protections), Plessy v. Ferguson (upholding segregation), Koramatsu v US (upholding the Japanese internment camps), today’s decision will be overturned by the acclamation of history in due course. It will be remembered as a mark of shame for the Roberts Court just as Dred Scott tarnishes Chief Justice Taney’s legacy to this day.

It may take a few years or decades to overturn Trump v. US, but the American people are the ultimate power under the Constitution. Majorities in the House and Senate can pass a bill to expand the Supreme Court, and a Democratic president can sign it. The reactionary majority can be overwhelmed by the appointment of four new justices, although expanding the Court by eight or more would be appropriate given the nearly hundred-fold growth in the US population since six justices were appointed in 1789.

The problem is, if Donald Trump wins in November–or if MAGA neo-fascists control either the House or Senate– there won’t be a United States in which the judicial process can self-correct. 

America as we’ve known it will be gone.

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The New McCarthyism

Americans have long demonstrated a distrust of bureaucracy–generally seeing the growth of that managerial cohort as exclusively governmental, although it is typical of any large corporation or organization. More recently, MAGA Republicans have deepened the hostility to government workers by accusing civil servants of being a malevolent “deep state.”

That “deep state” of MAGA imagining is a cabal of anti-American “woke-ism,” dedicated to helping “those people” and restricting the God-given rights of the good White Christian men who are the only “real Americans.” Any government officials with the temerity to block one of Trump’s fever dreams is clearly a member of that “deep state.”

And according to Project 2025, the denizens of the “deep state” must be removed.

The public is gradually becoming aware of Project 2025, the detailed, thousand-page “transition plan” produced by a consortium of far-Right think tanks led by the Heritage Foundation. These culture warriors have (accurately) determined that their Presidential candidate– profoundly ignorant of government and rapidly losing touch with reality–would, if re-elected, be even more incapable of ushering in their desired changes than he was during his first term, so they have come together to provide a road-map.

That road map is filled with horrifying policy positions, a large number of which are (currently) unconstitutional. One of them, as described in the linked report from Talking Points Memo, takes aim at that hated “deep state.” (When I read it, it triggered a vision of Joseph McCarthy waving a paper and claiming he had the names of multiple Commies working for the government…)

The Heritage Foundation is funding the creation of a blacklist of federal government workers who MAGA loyalists claim might obstruct the Trump II agenda, the Associated Press reported Monday.

The work of compiling the list of names of some 100 government employees is being done by a Kentucky fellow named Tom Jones and his American Accountability Foundation. The work is being financed with the help of a $100,000 “Heritage Innovation Prize” from the Heritage Foundation, long a bastion of Reagan conservatism in DC but now fully in MAGA mode. Heritage announced the prize winner back in May, referring to “the presence of anti-American bad actors burrowed into the administrative state.”

In announcing the prize, Heritage Foundation President Kevin Roberts touted it as effort to expose the “Deep State”:

“The weaponization of the federal government under President Joe Biden is only possible because of the deep state of entrenched Leftist bureaucrats in the White House and its agencies. I am proud to support the outstanding work of AAF in their fight to hold our government accountable and drain it of bad actors determined to undermine our constitutional republic and weaponize government against the American people, our economy, and our institutions.”

Notably, the plan is to publish the list online. A doxxing in the public square as it were, with all the obvious historical echoes, as the AP rightly notes:

The public list-making conjures for some the era of Joseph McCarthy, the senator who conducted grueling hearings into suspected communist sympathizers during the Cold War. The hearings were orchestrated by a top staffer, Roy Cohn, who became a confidant of a younger Trump.

As for the criteria used to determine who makes the list and how those criteria are applied, the AP provides this chilling methodology: “They’re relying in part on tips from his network of conservative contacts, including workers.”

Civil service protections are only one of the many, many elements of American government that would be jettisoned by Project 2025. If even a small number of the desired changes were to become law, America would be a profoundly different place–and far less hospitable to women, non-fundamentalist Christians and minorities.

As Congressman Jared Huffman explained,when he announced the creation of a Stop Project 2025 Task Force:

“Project 2025 is more than an idea, it’s a dystopian plot that’s already in motion to dismantle our democratic institutions, abolish checks and balances, chip away at church-state separation, and impose a far-right agenda that infringes on basic liberties and violates public will.

Project 2025 advocates placing all government workers– including employees of independent agencies like the Department of Justice– under direct presidential control, allowing the president to “efficiently” implement policies in a number of areas. Civil service employees would be replaced by “loyal” political appointees.

In other words, Separation of Powers would be replaced with a “streamlined” dictatorship.

So much for those silly Founders, and their devotion to “checks and balances”…Meanwhile, people upset with Biden’s debate performance want to replace him, a mere ten weeks before early voting starts.  They are mimicking Nero, who–you will recall– fiddled while Rome burned.

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Deconstructing America

The Founders would be dumbfounded.

Remember what you learned (maybe) in high school government class about the three “co-equal” branches of government? Well, our rogue Supreme Court says that was wrong–that judges should be the imperial, all-powerful arbiters of national life, because they know far better than the experts serving in various government agencies what government can (or really, cannot) do about elements of our common lives like air and water quality, unfair competition…you name it.

I have previously explained what was at stake in a case challenging what is called “the Chevron doctrine.” But Robert Hubbell’s Substack letter explains better than I could the appalling, immensely negative consequences of Friday’s decision over-ruling that doctrine, and I am going to quote liberally from his explanation/diatribe.

You will be able to tell your grandchildren that you lived through a judicial revolution that rewrote the Constitution to suit the financial interests of corporate America and the social agenda of an extremist minority that fetishizes guns, hates government, and seeks to impose their narrow religious views on all Americans. The open question in 2024 and beyond is whether we will reverse that revolution. The first step is to understand the earth-shaking consequences of the Court’s ruling…

The Roberts Court has anointed the judiciary as the ascendant branch of government. The person of the president—not the executive branch—is nearly omnipotent in Roberts’ schema. Congress has been neutered…

The US economy is the largest in the world by a wide margin. That size is attributable in no small measure to (a) the orderly markets and business conditions created by federal regulations and (b) the comparatively corruption-free nature of the US economy (also attributable to federal regulations).

Managing and maintaining the immense US economy is a monumental undertaking. We need regulations that control how and when fish stocks can be harvested, where medical waste can be stored, how thick concrete must be on bridge spans, what type and color of insulation must protect electrical wires, what temperature meat must be kept at when being transported across the country, and what type of information can be collected and stored in a retail transaction.

Multiply those issues by a million, and you will have a vague sense of the complexity and scale of the US economy….

Those millions of regulatory decisions demand broad and deep expertise by career professionals with advanced degrees and years of experience in their field of regulation. That expertise resides in the federal agencies housed in the executive branch under the president..Businesses hate federal regulation because they impose a trade-off: protecting the health and safety of Americans by reducing the maximum profits unrestrained businesses could earn in the short term in an unregulated economy.

The so-called “administrative state” of federal agencies has been wildly successful. It is why all international airline pilots speak English when flying between countries across the globe. It is why the US dollar is the world’s currency. It is why the world’s science, technology, and innovation hubs are located in the US. It is why every Chinese corporation that goes public in China has the goal of transferring from the Chinese stock exchanges to the New York Stock Exchange, Nasdaq, and the Chicago Options Exchange as soon as possible…

As Hubbell writes, Friday’s decision dramatically reduces the power of Congress by requiring that legislation be as specific as an instruction manual. Under Chevron, when Congress directed the Executive Branch to achieve a desired goal, agency personnel with deep expertise in the relevant area would determine how best to reach that goal. If a regulation was challenged, the Court could strike it down if evidence showed it was unreasonable, but absent such evidence, the courts  deferred to the agency’s interpretation.

Hubbell provides an example:

If the Court requires Congress to specify the precise number of salmon that can be taken from the Klamath River each year rather than saying that the NOAA Fisheries Department shall establish fishing quotas to maintain healthy fish populations in inland waterways, Congress’s work will grind to a halt. Members of Congress have neither the time nor expertise to determine a healthy fish population for each inland waterway in the US. In the absence of “the administrative state,” Congress (or the courts) must serve as the regulators of the millions of daily transactions governed by federal regulations.

In the future, when a business challenges a regulation, federal judges rather than agency experts will interpret and apply–or more likely, overturn– the regulation. We’ve seen the arrogance and fact-free behavior of recent, ideologically-driven judicial appointees. 

The Trump judges on the Supreme Court have accomplished things near and dear to the Rightwing heart. In addition to dramatically undermining the liberties protected by the Bill of Rights, they have substantially deconstructed the checks and balances of the Founders’ government structure. They certainly aren’t “originalists” in any sense that matters.

At best, it will take years–generations–to undo the damage. At worst, a Trump win in November and implementation of Project 2025, would foreclose any possibility of enlarging or otherwise restraining this rogue Court and beginning to reverse the enormous damage it has caused.

What is truly terrifying is how few Americans seem to understand the stakes.

This election is a choice between an elderly man who has been an exemplary President but a poor debater and an equally elderly man who, in service to his own monumental ego and his rabid White Christian Nationalist base, is intent upon destroying America as we know it. 

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Federalism And MAGA Lies

I know it’s hopeless to expect anything approaching logic–or constitutional knowledge– from MAGA conspiracy theorists, but I’ll admit I still get surprised by the sheer fact-free idiocy of some of their anti-Biden accusations. In many cases, that idiocy is an outgrowth of what I call “civic illiteracy”–an obvious lack of knowledge of the most basic structures of American government.

Take the MAGA folks who are screaming over Trump’s New York prosecution and subsequent guilty verdicts. Republican partisans–some of whom, as elected officials, should certainly know better–accuse the Biden administration of “weaponizing” the Department of Justice, claiming that President Biden was responsible for both Alvin Bragg’s decision to charge Trump and for the subsequent jury verdict.

Yeah! As the Lincoln Project recently noted, it’s also Biden’s fault you got that speeding ticket!

Anyone who took a high school government class (and actually passed) should know the difference between federal and state jurisdiction. That difference is part of what we call federalism–and it’s foundational to our legal and governmental systems. As I used to explain to my students, the Founders gave us both horizontal and vertical checks and balances: separation of powers (dividing authority among the branches of government–someone should tell Tommy Tuberville), and federalism (dividing authority between federal, state and local units of government).

Federalism is evidently a concept utterly foreign to a large segment of the voting population. As the Washington Post recently reported, a CBS News-YouGov poll tried to figure out just “how many Americans buy into the baseless idea that Biden had something to do with the charges against Trump in Manhattan.

Turns out, it’s 43 percent — and 80 percent of Republicans. Those are the percentages who agree that the charges were brought because of “directions that came from the Biden administration,” rather than merely by “prosecutors in New York.”…

The article debunked several aspects of the claim, and noted

This theory was also firmly rejected in recent weeks by no less than former Trump lawyer Joe Tacopina, who worked on Trump’s defense early in the Manhattan prosecution. He called the idea “silly” and “ridiculous.”

“Joe Biden or anyone from his Justice Department has absolutely zero to do with the Manhattan district attorney office,” Tacopina said in an MSNBC interview, adding, “We know that’s not the case, and even Trump’s lawyers know that’s not the case.”

“People who say that,” Tacopina told MSNBC, “it’s scary that they really don’t know the law or what they’re talking about.”

By Tacopina’s formulation, 4 in 10 Americans have no idea what they’re talking about.

As the article notes, this is hardly the first time Trump’s base has come to believe nonsense, despite a lack of any evidence–and in spite of the fact that believing it requires total ignorance of the structure of their own government.

Believing that the federal government stage-managed a state-level trial also requires a considerable amount of cognitive dissonance, since the GOP has long insisted on an extreme version of “state’s rights.”

In fact, the Republican Party has never quite gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was initiated after passage of the 14th Amendment constitutionalized the principle that the fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but thanks to nationalization of the Bill of Rights, they are forbidden to retract them. (That’s why the theocrats found it necessary to eliminate reproductive freedom from the liberties protected by the Bill of Rights.)

Our relatively strong federal government was founded in reaction to the serious and multiple problems the country experienced under the Articles of Confederation, which gave states far too much authority.  Obviously, not all policies need to be nationally uniform–there are plenty of areas where local control is appropriate. However, questions about who is entitled to fundamental rights–and what those rights are–shouldn’t be one of them, as the patchwork of approaches to reproductive freedom that’s emerging is likely to demonstrate. Forcefully. Justice Alito’s dismissal of the substantive due process doctrine is-–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

But that step back didn’t merge state and federal justice systems.

Some of the Republicans who champion “states rights” are happy to ignore the whole concept in order to fabricate a ridiculous–albeit comforting– accusation. Others–probably the majority– are just broadcasting their profound ignorance of America’s basic governance structure.

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How Red is Indiana?

Wow…Just wow.

At the party’s convention on Saturday, Hoosier Republicans rebuffed their gubernatorial candidate’s choice of a lieutenant governor candidate in favor of an out-and-out, well-known Christian Nationalist–despite the fact that Braun, the gubernatorial candidate, had prevailed upon Trump to endorse his less-known-to-be looney choice.

The victory of Micah Beckwith exposed both the current rifts in the party and the degree to which the party faithful have succumbed to extremist culture war and Rightwing grievance.

The GOP’s choice led to yet another “schism”–this time, in my family. While all of us find Pastor Beckwith horrifying, we’re split on whether his selection really reflects the beliefs and bigotries of Indiana citizens. My youngest son thinks this extreme culture warrior is “in sync” with Hoosier voters; I believe his addition to an already terrifyingly extreme GOP ticket will hurt Republicans in November. (My son says he desperately wants to lose our bet on this issue, but he long ago lost faith in Indiana’s electorate.)

What do we know of Pastor Beckwith’s ideology?

We can begin with his statement that his choice by the delegates was “divinely inspired.” Presumably, he is confident that he is God’s choice…Indeed, Beckwith has been a constant voice for his rather unique views of “godliness.” He relishes the fight against “wokeness” and “woke indoctrination”–by which he means genuine education, efforts at inclusion or support for a social safety net–not to mention hysterical opposition to reproductive choice, women’s rights and–of course– church-state separation.

He also opposes freedom to read. Beckwith’s previous public service was as a member of the Hamilton East library board, where his efforts to censor hundreds of books generated a huge blowback from local citizens and triggered an eventual return to previous library policies.

I’m unsure how any of these extreme culture war preoccupations equip him for a position tasked with increasing tourism (!) and supporting agriculture…

Beckwith may be the most extreme example of the state GOP’s lurch to a very unAmerican far right, but he really does fit well with the rest of a state ticket on which Braun is arguably the least scary, which is really saying something. (He at least gives occasional nods toward sanity.) I have posted numerous times about Jim Banks--aka “Focus on the Family’s Man in Washington”–whose culture war positions include support for a national ban on abortion with zero exceptions, unremitting attacks on education, support for permitless carry (because that’s so “pro-life”…) and vicious assaults on trans children, among others.

I’ve posted even more frequently about Todd Rokita, the current occupant of the Attorney General’s office. Rokita has taken every possible opportunity to pander to the far Right of the Republican Party, most (in)famously in his vendetta against the doctor who performed an abortion on a ten-year-old rape victim, charging her with improprieties he knew to be false. He has subordinated his duties as AG to participation in national litigation brought by Rightwing AGs from other Red states, been chastised by the state’s Supreme Court (members of which were selected by Republican governors), and routinely acted in ways to embarrass not just Indiana, but the entire legal profession.

This slate of candidates makes outgoing conservative Republican Governor Holcomb look leftwing by comparison.

So–here we are. As I have previously noted, in November, Indiana voters will choose between a statewide slate of three talented and accomplished women whose credentials are appropriate for the jobs they seek, and whose positions on the issues are mainstream and sensible, and a collection of out-and-proud MAGA misogynists and theocrats. This won’t be an election in which differences are minor. Unlike so many elections in Indiana, it also won’t be an election affected by gerrymandering–even Hoosier Republicans can’t gerrymander a statewide race.

If you agree that most Indiana citizens reject the Neanderthal positions of these misogynist theocrats, you should send McCormick, McCrae and the eventual Democratic AG candidate a few dollars each–giving them the wherewithal to inform Indiana’s voters that Braun, Beckwith, Banks and Rokita are nothing like Indiana’s traditional Republicans.

As my students might have put it– these are scary dudes, and Indiana’s voting public needs to understand just how scary they are.

These four men all reject America’s constitutional values, and I  refuse to believe they reflect the values of Hoosier voters. Despite my son’s contrary views, I am convinced that these “Christian warriors” will only win if the Democrats lack the resources to expose them for what they are: the Christian Taliban.

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