Category Archives: Constitution

Asking The Wrong Question

As the Senate “considers” the nomination of Brett Kavanaugh (note quotation marks, since  support for this particular nominee is entirely partisan and no genuine consideration of his record is being allowed), much of the focus is on his presumed “pro life” approach to cases involving abortion.

Media framing of this issue highlights the most frustrating element of America’s “pro-choice” or “pro-life” public debate:  the persistent refusal to confront the actual question, which is not whether a pregnant woman should continue or terminate her pregnancy.

The question is: who should have the power to make that decision? 

As I have repeatedly argued, a government with the authority to forbid abortion is a government with the authority to require it. I usually point to China, where the government has done precisely that, but yesterday, my lawyer son pointed me to a case right here in the good old U.S. of A.– and a judicial decision by none other than Brett Kavanaugh.

As Salon reported, 

In 2007, as an appellate judge in Washington, D.C., Kavanaugh was presented with an unusual case involving two women who had wanted to continue their pregnancies but had been forced to have abortions instead. They sued and Kavanaugh ruled against them, denying their claims that they had a right to be consulted about the decision to terminate their pregnancies.

Many Americans, probably most, understand the abortion debate to be about a struggle between the right of women to bodily autonomy and the “right to life” that anti-choicers claim embryos and fetuses have. In reality, as this case shows, the legal debate is really only about autonomy — so much so that an anti-choice judge like Kavanaugh ruled against women who wanted  to “choose life,” as conservatives say, rather than allow them a greater measure of autonomy….

The case is a complex one, but the basic story involved three women who received care from the District of Columbia Mental Retardation and Developmental Disabilities Administration. All three women had intellectual disabilities and had been determined legally incompetent. One woman had an elective eye surgery and two had abortions, all chosen for them without any consideration of their wishes. The women argued that they had a right to have their wishes considered, but Kavanaugh ruled against them….

Legal standards regarding who is competent to make medical decisions for themselves are complicated and vary quite a bit from state to state. But Mathis said that even in states that have the fewest autonomy rights for people with certain disabilities, “most courts consider the person’s wishes,” even if they may ultimately rule against them. Kavanaugh, however, “just rejected the notion that there was any reason at all” to ask the women in that case what they wanted.

I emphasized that last line, because it illuminates what is truly at stake in these arguments. The question is not “to abort or not to abort.” The question is: who decides? The Bill of Rights is essentially a list of things that government does not get to decide–what you read, what you believe, whether or to whom you pray. Government officials don’t get to decide to  search you (or your “papers or effects”) simply because you look shifty, or out of place, or because the officer “has a hunch.”

As snotty as the faux originalists are about the constitutional “penumbra” referenced in Roe, it is impossible to read through the Bill of Rights without recognizing that the entire document rests on the Founder’s concern to protect personal autonomy and to safeguard the right of individuals to make their own moral and political decisions–including what the Court has subsequently dubbed “intimate” decisions–free of government coercion or interference. The 9th and 10th Amendments make it clear that rights not “enumerated” (that is, not specifically listed) are not to be “denied or disparaged,” and that powers not specifically delegated to the central government are to be retained by the states and the people.

It is an act of intellectual dishonesty to dismiss the limits that the Bill of Rights places on government’s authority to control its citizens’ exercise of self-determination.

The question, I repeat, is not “what shall be decided?” but “who shall decide it?”

The question for Brett Kavanaugh is not whether he fancies himself “pro-life.” It is whether he is willing to acknowledge that the power of government to control women’s lives is limited by our constitution.

His jurisprudence makes it abundantly clear that he is not willing to make that acknowledgement. For that reason (and a number of other very troubling decisions he has handed down), he is unfit to sit on the nation’s highest court.

Comments

The Real Constitutional Crisis

As anyone who reads my blogs and columns–or who has ever been a student in one of my classes–can attest, I have respect bordering on reverence for the American Constitution. But it is becoming painfully clear that some of the governing mechanisms required by that founding document no longer serve us. The Constitution was crafted, after all, to address the concerns of a very different age.

The dysfunctions of the system have been accelerating for some time, culminating in today’s parody of responsible government.

A recent article in Commentary Magazine focused on the undeniable fact that Congress is broken;

It is hard to avoid attributing every dysfunction of the moment to Donald Trump’s peculiar mix of reckless talk and often feckless action. But judged on a scale of institutional breakdown, the presidency—even this presidency—is not our biggest problem….

The budget process has never been so hobbled. Not only did we come close to an unprecedented government shutdown during single-party control of Congress and the presidency, but this year has also marked the first time in the four-plus decades since the modern budget process was created that neither chamber has even considered a budget resolution.

And the trouble didn’t start in just the past few years. Presidential hyperactivity in recent decades has masked a rising tide of dysfunction—giving us policy action to observe and debate while obscuring the disorder that was overtaking our core constitutional infrastructure. It kept us from facing what should be an unavoidable fact: Congress is broken.

As the author points out, whatever measure you apply–legislation passed, public approval, member satisfaction, even just committee work or each house’s ability to live by its own rules–will lead you to the same conclusion. And while there are many reasons for the institution’s abject failure to perform, the Constitutional language is among them.

The Constitution gives the Congress powers but not responsibilities. The president is required to execute the laws and tasked with responding to changing world events on the country’s behalf. The courts have to consider cases and controversies put before them and apply the laws accordingly. But while the general scope and reach of the Congress’s authorities are laid out in Article I, the institution is not really told what it must do within that scope. That’s because the assumption was that Congress would naturally seek to control things and run as far and as hard in pursuit of power as the Constitution allowed, so that only boundaries were needed.

As everyone who has studied the Constitutional Convention knows, the Framers worried most about the legislature (the “most dangerous branch”), and the prospect that it would run rampant.

Today’s Congress simply defies that expectation. It suffers from a malady the framers never quite imagined when they thought about politics: a shortage of ambition. Members are certainly eager to retain their offices, but they seem oddly indifferent to using those offices.

The article goes on, and I encourage you to click through and read it, but even though I think much of the analysis is accurate, I also think it is incomplete. The fecklessness of our current political class is also fostered by other structural defects required or permitted by the Constitution: the Electoral College and the primary authority of state governments for elections and redistricting, to name just two.

The problem is, if Americans were to engage in a redesign of the Constitution–if efforts to hold another Constitutional Convention (an effort currently underway) were to succeed–it is almost certain that the damage done would vastly outweigh any improvements. The people most eager to rewrite our national charter are precisely the people who shouldn’t be allowed near it. It isn’t just the theocrats and the “states rights” bigots, worrisome as they are, but well-meaning folks who have very limited understandings of economic and social realities–the “balanced budget” advocates and libertarian opponents of regulation and social welfare programs, among others.

Legal structures are inevitably reflective of deep-seated cultural assumptions, and cultural changes come slowly. Until such time as an effort to modernize the Constitution can be undertaken in a less politically toxic, uninformed and polarized environment–undertaken by civically-literate, knowledgable and public-spirited “renovators”–the best we can do is “eject and elect.”

We need to eject from Congress the sorry excuses who are currently failing to act responsibly, and we need to elect people who are willing and able to discharge their responsibilities.

We need to vote as if our futures depend upon it. Because they do.

Comments

Did Your Health Insurance Premium Go Up? Thank Donald Trump

There’s a reason the Republicans are frantically trying to load the federal bench–including the Supreme Court– with ideological conservatives: given Congress’ refusal to discharge its constitutional duty to oversee the executive branch, the courts are the only recourse for Americans opposed to the criminal enterprise that is the Trump Administration.

There are currently hundreds of challenges to that administration making their way through the courts, and a number of them are critically important. One of those involves the “take care” portion of the chief executive’s job description–the duty to “faithfully execute” the laws of the land.

People who depend on the Affordable Care Act–and all citizens who believe that Presidents have such a duty –should be rooting for the success of a lawsuit recently filed by four cities. 

Vox introduced its report on that lawsuit thusly:

Abbe Gluck argued, in October 2017, that President Trump’s “sabotage” of the Affordable Care Act violated his duty under the Constitution to ensure laws passed by Congress are executed. This week four cities — Baltimore, Chicago, Columbus, and Cincinnati —filed a suit making that very claim.

Here’s the essence of the argument:

Modern American history has never seen as full-scale an effort to sabotage a valid law as we have with President Trump and the Affordable Care Act — a law whose legality has been upheld twice by the US Supreme Court.

The president has a legal obligation, under Article II of the US Constitution, to “take Care that the laws be faithfully executed.” That means he must make sure that our laws are implemented in good faith and that he uses his executive discretion reasonably toward that end.

His agencies likewise have a legal obligation, under the Administrative Procedure Act — the statute that sets the rules for our entire federal regulatory apparatus — not to use their power to engage in arbitrary action.

The intentional, multi-pronged sabotage of the ACA that we have seen during Trump’s presidency — reaching new heights since attempts by Congress to repeal the law failed — violates both Trump’s constitutional obligations and quite possibly the obligations of his Department of Health and Human Services.

Like the pending lawsuits alleging violations of the Emoluments Clause, the take care clause has rarely–if ever–been the basis of a lawsuit.  At least in modern times, it certainly hasn’t been the basis of a case against a president, and that is entirely understandable: most legal scholars agree that presidents need a fair amount of discretion in enforcing the laws. Demonstrating that the person in the Oval Office is purposely undermining a law rather than exercising discretion is extremely difficult. Usually.

But this, of course, is Donald Trump–idiot extraordinaire. Far from masking his motives (making proof difficult),  he has trumpeted and tweeted them.

The ACA requires the federal government to support the open enrollment period — in which individuals must sign up for insurance or lose their chance to do so. The ACA requires the federal government to, among other things, maintain a website and work with local “navigators” and other groups to educate consumers and encourage them to sign up for insurance.

Trump instead set out to make open enrollment a failure.

He cut the enrollment period in half, from three months to six weeks. He shut down the federal enrollment website for nearly 12 hours every Sunday during the period — a crucial window when working Americans might enroll. He has canceled already- scheduled events in which federal officials had planned to visit states and help with enrollment. He cut advertising for enrollment by 90 percent, from $100 million to $10 million, even though his administration charged insurers on the exchanges user fees to generate money for that same advertising. (Those fees far exceeded $10 million.)

One day before the new budget year began on September 1, he announced a 40 percent cut to those navigator programs — after promising them $60 million in grants in May, and afterhis administration had said it would support navigators in order to partly offset the obstacles erected by the curtailed enrollment period.

Why would President Trump want to stifle open enrollment? Because that would seriously weaken the ACA’s insurance markets, which require a mix of healthy and sick customers to be stable. In line with that ambition, he also signed an executive order last week that directs his agencies to consider policies that would allow the sale of new group and short-term plans lacking many ACA protections. These alternative plans are likely to pull even more healthy individuals out of the insurance markets.

The same day, Trump announced his plan to cut off important cost-sharing payments that the ACA promises to insurers to compensate them for reducing what individuals have to pay in premiums…  creating extreme instability in the insurance industry… And Trump made clear that his goal in cutting off the funds was to harm he law. He tweeted the same day the policy was announced: “ObamaCare is causing such grief and tragedy for so many. It is being dismantled …”

Knowledgable observers calculate that premiums would have declined this year, rather than increasing, if not for Trump’s sabotage. That’s bad enough, but if a President can get away with eviscerating rather than enforcing valid laws with which he personally disagrees, the rule of law becomes meaningless.

Comments

I Don’t Think That Word Means What You Think It Means….

I wonder what theocrats think the word “liberty” means?

I guess we’re going to find out. According to Vox and a number of other media outlets,

Attorney General Jeff Sessions announced the creation of a “Religious Liberty Task Force” that will enforce a 2017 DOJ memo ordering federal agencies to take the broadest possible interpretation of “religious liberty” when enforcing federal laws. That memo, for example, prohibits the IRS from threatening the tax-exempt status of any religious organization that actively lobbied on behalf of a political candidate, which is not allowed under the Johnson Amendment.

In a bold speech delivered at the Justice Department’s Religious Liberty Summit, Sessions characterized the task force as a necessary step in facing down the prevailing forces of secularism. “A dangerous movement, undetected by many, is now challenging and eroding our great tradition of religious freedom,” he said, which “must be confronted and defeated.”

I don’t think I’d call the speech “bold.” “Ignorant” might be a more appropriate adjective.

Secularism, properly understood, is simply the absence of religion–an absence which evidently constitutes an existential threat to the worldview of people like Sessions. And liberty, at least as defined by those who drafted the U.S. Constitution, definitely does not mean the privileging of Christianity and its adherents over all other belief systems, religious or secular, which is quite clearly what Sessions intends.

While the task force will only enforce the guidelines listed by the religious liberty memo, the language in Sessions’s speech was as significant as the creation of the task force itself. Using striking rhetoric and the incendiary narrative of culture wars, Sessions characterized America as an implicitly Christian nation under attack from secularists. In so doing, he is continuing a wider pattern of the Trump administration: treating the federal government as a necessary participant in the longevity of Christian America.

He’s advocating for the kind of Christian nationalism — blending patriotism and evangelical Christianity — that the administration has consistently used to legitimize its aims and shore up its evangelical base.

As the Vox article noted, over the past few years Sessions’ version of “liberty” has gained considerable legal ground–from the Hobby Lobby decision, allowing closely-held corporations with religious shareholders to deny contraception coverage to its employees, to the case of Trinity Church, in which the Court held that a Lutheran church could use taxpayer funds to build a playground on its property. The confirmation of Kavanaugh would likely carve another hole in the wall of church-state separation.

It is obvious that this task force and various other efforts to take America back for (their version of) Jesus have been prompted by fury over civil rights for LGBTQ folks–especially recognition of same-sex marriage–and hysteria over the growing recognition that White Christian cultural domination of America is on the way out.

I’m not going to waste pixels on the fundamentalists who use religion as a justification for their bigotry and who experience any loss of privilege as discrimination. But I am going to protest the misuse of language.

In America, the word “liberty” means “personal autonomy”–an individual’s right to self-government. Liberty means we each have the right to “do our own thing” so long as we do not thereby harm the person or property of someone else, and so long as we are willing to accord an equal right to others. It most definitely does not mean (as the theocrats would have it) an obligation to do the “right thing” as that “right thing” is defined by the theology of the majority and enforced by government.

The First Amendment protects the integrity of the individual conscience against government overreach, and together with the Equal Protection Clause of the 14th Amendment, it prohibits government from favoring some religious beliefs over others, or from favoring religion over non-religion. (Or vice versa, for that matter.)

The fact that we have an administration filled with people who reject that understanding of liberty—who are dismissive of the most basic premises of America’s history, philosophy and law–is more than unfortunate. It’s scandalous.

Or to coin a phrase, deplorable.

Comments

The Enemy Of My Enemy…

E.J. Dionne had an interesting column in the Washington Post a few days ago.

He was analyzing the relationship that has recently been uncovered between Russia and the American Right–not just the NRA (fascinating as THAT is) but also the Evangelical Christian community. There’s been a lot of focus on that community’s support of Trump, but very little commentary on its seemingly bizarre relationship with Russian operatives.

In truth, there is nothing illogical about the ideological collusion that is shaking our political system. If the old Soviet Union was the linchpin of the Communist International, Putin’s Russia is creating a new Reactionary International built around nationalism, a critique of modernity and a disdain for liberal democracy. Its central mission includes wrecking the Western alliance and the European Union by undermining a shared commitment to democratic values.

I think that one key to the referenced “disdain” for liberal democracy is resistance to the “liberal” part–not to liberal politics as we understand that term today (although the Right opposes that liberalism too), but resentment of the 18th Century liberal restraints on what the majority can vote to have government require of everyone else. In other words, the limits on majoritarianism imposed by the Bill of Rights. But I digress.

Dionne notes that Putin’s affinity toward the far right makes sense, because his power rests on a nationalism rooted in Russian traditionalism.

And the right in both Europe and the United States has responded. Long before Russia’s efforts to elect Trump in the 2016 election became a major public issue, Putin was currying favor with the American gun lobby, Christian conservatives and Republican politicians.

In a prescient March 2017 article in Time magazine, Alex Altman and Elizabeth Dias detailed Russia’s “new alliances with leading U.S. evangelicals, lawmakers and powerful interest groups like the NRA.”

I thought the most telling paragraph in the column was Dionne’s explanation of the Evangelical/Russia bond.

Evangelical Christians, they noted, found common ground with Putin, a strong foe of LGBTQ rights, on the basis of “Moscow’s nationalist and ultraconservative push — led by the Russian Orthodox Church — to make the post-Soviet nation a bulwark of Christianity amid the increasing secularization of the West.”

There’s an old saying to the effect that “the enemy of my enemy is my friend.” I have never understood fundamentalist Christians’ seething hatred for the gay community–as many pastors have noted, the one (incessantly recited) bible passage about a man lying with another man is vastly outnumbered by the biblical admonitions they cheerfully ignore about feeding the poor and helping the widow and orphan, etc.

It’s hard to avoid the suspicion that these Evangelicals use the Bible the way a drunk uses a street lamp–for support rather than illumination.

Be that as it may, evidently all Putin had to do too woo Evangelicals was discriminate against the people they’d love to oppress if only that pesky Bill of Rights and old-fashioned American notions about civil equality didn’t get in their way…

The deepening ties between the Russian government and elements of the right should give pause to all conservatives whose first commitment is to democratic life. The willingness of traditionalists and gun fanatics to cultivate ties with a Russian dictator speaks of a profound alienation among many on the right from core Western values — the very values that most conservatives extol.

Of course, the people who support Trump and are willing to get in bed with Putin (and I mean that in the most heterosexual possible way!) aren’t genuine conservatives. They have no discernible political philosophy–just a deep-seated resentment for people unlike themselves, and a well-founded fear that the dominance they once enjoyed is rapidly evaporating.

Comments