Category Archives: Constitution

How Long Can This Last?

Sentient Americans of all political persuasions knew that Donald Trump was unfit to occupy the Oval Office. We knew he was unstable. But even those of us who were terrified by his election have been astonished by the speed with which he is harming critical American interests and plunging the country–and world– into chaos.

Trump’s most recent Executive Order, banning refugees, is as astonishing as it is inhumane. As the Huffington Post reported,

Trump approved the refugee ban amid the biggest refugee crisis in history and on Holocaust Remembrance Day, which honors the millions of people killed during World War II, many of whom tried to flee to the U.S. but were turned away.

It’s not the blanket ban on Muslims that Trump advocated for during his campaign, and it does not single out any country by name other than Syria for its refugees.

But Trump did say earlier in the day that he would prioritize helping Syrian Christians. He also mentioned “radical Islamic terrorists” while signing it. And in the text, it carves out an exception for admitting refugees who are religious minorities even while nearly all others will be barred for 120 days.

The order–which exempts countries where Trump does business or has hotels (business uber alles, evidently)–has caused chaos at airports around the world. It has kept students from returning to their universities, scientists from professional meetings. It applies even to longtime holders of green cards–people who have lived and worked legally in the U.S. for years.

It affects tens of thousands of people: not just refugees already “extremely” vetted and on their way to the U.S., but foreign nationals, immigrants and tourists from the designated countries and Americans whose families will now be unable to visit. It also affects thousands of Iraqis who risked their lives helping this country during the Iraq War.

Like all of Trump’s actions in the days since assuming office, it was hasty, ill-considered, and based on “alternate facts.” As USA today noted,

While Trump has claimed that most Syrian refugees coming to the U.S are single, military-age men, the State Department said those numbers didn’t add up. As of Nov. 2015, 77% of Syrian refugees who entered the U.S. were women and children. Only 23% were adult men, and only 2% were “single men unattached to families.”

As Senator Chris Murphy pointed out, not only does this profoundly unAmerican order not make us safer, “Trump has now handed ISIS a path to rebirth. They can and will use his announcement today as confirmation that America is at war with Muslims, especially those Muslims living in desperate circumstances.”

Even Dick Cheney says this order “goes against everything we stand for and believe in.”

It has been a little over a week since this delusional and dangerously ignorant man has been President. In that time, he has poisoned relations with Mexico, a neighbor and important trading partner; continued his inexplicable, fawning relationship with Vladimir Putin; and pulled the U.S. out of the TPP, rather than addressing fixable problems that had been identified with it– an action that will allow China to become a dominant influence in the economies of not just Southeast Asia, but also East Africa and even parts of Europe. He’s announced his support for the use of torture. He has declared war on the media. He has ignored and trashed the Constitution. His insistence that “millions” of illegal votes were cast is both ridiculous and an affront to America’s democratic institutions.

And that’s just week one.

How long will the Republicans in Congress continue to enable this dangerous madman?  How many of Trump’s corrupt and ill-equipped Cabinet nominees will they obediently confirm? How long will their self-serving partisanship trump patriotism?

If there is a silver lining in any of this, it is in the horrified reaction of everyday Americans–the millions who marched, the multiple Resistance groups that have sprung up in the wake of the election, the throngs of protestors that spontaneously descended last night on the nation’s airports: the millions of Americans who know that we are better than this.

We the People cannot allow this to continue.

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The Inmates Running Indiana’s Asylum

Meanwhile, on the local front….

As I was busy avoiding last Friday’s Inauguration, a reader sent me the digest of an bill introduced in the Indiana legislature, demonstrating that insanity isn’t confined to Washington, D.C.

The official synopsis of House Bill 1127 reads as follows:

Nullification of EPA regulations in Indiana. Nullifies all regulations imposed in Indiana by the United States Environmental Protection Agency (EPA). Provides that the department of environmental management shall provide environmental protection for the citizens of Indiana. Effective: July 1, 2017.

The fiscal analysis of the measure (which evidently assumes that there is no such thing as the Supremacy Clause of the U.S. Constitution) is blunt: According to the Legislative Services Agency’s Office of Fiscal and Management Analysis,

the bill nullifies all regulations imposed in Indiana by the United States Environmental Protection Agency (EPA). It provides that the Department of Environmental Management shall provide environmental protection for the citizens of Indiana… The Indiana Department of Environmental Management (IDEM) would be solely responsible for providing environmental protection for the state due to the nullification of U.S. EPA regulations provided in this bill. The impact to IDEM would be the loss of federal funds from the U.S. EPA that are used to run programs and provide funding for the staff assigned to those programs. This would also result in a reduction of the amount of state matching funds (about $11 M in dedicated funds annually) that the state would have to provide to receive the federal funds. If IDEM continues the programs, the costs would be funded only through state appropriations.

This bill could result in the loss of about $22.5 M annually in federal funding from the U.S. EPA. Of this amount, about $2.2 M was disbursed to local units in FY 2016…. Local units receiving funding from U.S. EPA grants through IDEM could experience a decline in funding. For FY 2016, local units received about $2.2 M in grant funding through U.S. EPA funds received by IDEM.

The operative phrase, of course, is “If IDEM continues the programs…” It is fairly obvious that the purpose of this legislation is to allow Indiana to discontinue programs that protect the state’s air and water.

I have no idea whether this retrograde effort will get a hearing, nor do I know anything about Representative Judy, who introduced it. We can hope that legislative leadership recognizes both the unconstitutionality of the measure–after all, states cannot simply “nullify” federal regulations with which they disagree, no matter how much they might want to–and the considerable political capital it would cost them.

Despite the rejection of climate science by Republican ideologues and Trump cabinet nominees, survey research confirms that large majorities of both Republicans and Democrats accept settled science and strongly favor environmental protections.

Bills like this raise the question–perennial in Indiana–WHO ELECTS THESE PEOPLE??

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Speaking of White Privilege….

In the wake of the election, there has been a renewed call to get rid of the Electoral College–or at least modify its operation via the National Popular Vote Project to require electors to vote for the candidate who wins the popular vote.

The Electoral College was originally a concession to the slave states, allowing them to “count” their slaves (albeit at a discount). Today, it has all sorts of pernicious and undemocratic effects. Not long ago, Jamin Raskin, who teaches Constitutional law at George Washington University, summed up a number of those effects in a post to the American Constitution Society’s blog. Raskin noted that,

in the absence of the Electoral College, it would no longer make strategic sense to “turn off the lights and fly over 40 states – from California to New York, Texas to Vermont, Georgia to Mississippi, Hawaii to Alaska, South Dakota to Montana, and so on.” And he disputed the argument that the rest of the electorate “should be content to be long-distance spectators because the voters of Virginia or Arizona or Florida are just like us and are effectively acting as proxies for our interests and our values.”

This was precisely the argument that was rejected in the American Revolution.

The British tried to convince the American colonists that they didn’t need their own elections and representatives in Parliament because they were “virtually represented” by members back home representing Englishmen of similar views. The colonists rebelled against this insulting doctrine of “virtual representation,” which they treated as an assault on political liberty and authentic democracy rooted in the politics of place. Roughly 140 years later, we similarly rejected claims that women didn’t need the vote because they were adequately represented by men.

Every citizen’s vote should count equally in presidential elections, as in elections for governor or mayor. But the current regime makes votes in swing states hugely valuable while rendering votes in non-competitive states virtually meaningless. This weird lottery, as we have seen, dramatically increases incentives for strategic partisan mischief and electoral corruption in states like Florida and Ohio. You can swing a whole election by suppressing, deterring, rejecting and disqualifying just a few thousand votes.

My own biggest “gripe” is, as I have previously written, the extra weight the system gives to votes from rural areas. In effect, urban votes count less and rural preferences count more–an anti-democratic result. But an analysis by Vox has confirmed that it isn’t only voters from more thinly populated areas who are privileged by the system. The Electoral College also privileges the votes of white Americans.

The probability of one person’s vote being decisive, we found, ranged from roughly one in a million for a resident of New Hampshire — a swing state with a relatively small population — to less than one in one billion in states that are reliably “red” or “blue,” such as New York, California, Kansas, and Oklahoma.

We can use a similar approach to show how the Electoral College increases not just the weight of voters in swing states but the weight of voters of certain ethnicities — based on their distribution across the states. We find that, based on the current distribution of voters of different ethnicities across states, and particularly within swing states, the Electoral College amplifies the power of white voters by a substantial amount….

After running the numbers, we estimate that, per voter, whites have 16 percent more power than blacks once the Electoral College is taken into consideration, 28 percent more power than Latinos, and 57 percent more power than those who fall into the other category.

I’m sure that analysis warms the cockles of Bill O’Reilly’s heart. (I assume he does have one. Somewhere.) It doesn’t do much for mine.

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Rule of Law? Respect for Democracy? Not in the Age of Trump…

Remember the quote–attributed to John Adams–to the effect that the then-new American Constitution had created “a government of laws, not men”?

One of the most important improvements in our human efforts to improve governance was development of the concept of rule of law–the radical notion that fair rules should be established and everyone–including government officials and others in positions of power– should be expected to follow those rules (including the rules on how rules should be changed).

Adherence to the rule of law, in spirit and fact, is absolutely essential to the legitimacy of a governing authority.

Which brings us to the truly outrageous behavior of Republican lawmakers in North Carolina. As the New York Times reported earlier this week,

Republicans in the North Carolina legislature on Wednesday took the highly unusual step of moving to strip power from the incoming Democratic governor after a bitter election that extended years of fierce ideological battles in the state.

After calling a surprise special session, Republican lawmakers who control the General Assembly introduced measures to end the governor’s control over election boards, to require State Senate approval of the new governor’s cabinet members and to strip his power to appoint University of North Carolina trustees.

Republicans also proposed to substantially cut the number of state employees who serve at the governor’s pleasure, giving Civil Service protections to hundreds of managers in state agencies who have executed the priorities of Gov. Pat McCrory, a Republican.

These extraordinary steps–taken in the wake of a democratic (note small “d”) election that produced a result displeasing to the state’s GOP–unquestionably violate democratic norms, and may well violate the North Carolina state constitution.

The election of a Democratic governor came despite sustained Republican efforts to suppress African-American votes–efforts so transparently and blatantly aimed at (disproportionately Democratic) black voters that a court described them as “surgical.” Several of those measures were struck down, but a number of others–moving polling places, shortening voting hours–had the intended effect.

Even in the face of massive vote suppression, the Democratic gubernatorial candidate somehow won.Hence the special session to strip the new Governor of authority–and the transformation of North Carolina government into an illegitimate putsch.

As the Times editorialized

This legislative power grab is the latest underhanded step by a state Republican Party desperate to stay in power in a state where demographic changes would normally benefit Democrats. Republicans in North Carolina, a presidential battleground state, have used aggressive redistricting and voting suppression measures that are among the most brazen in the nation to win elections. The courts have blocked some of these efforts, but Republicans have found workarounds, for instance, by limiting voting hours and sites.

Calling what is happening in North Carolina a “legislative power grab” is like calling cancer a “minor illness.” It is a shocking violation of democratic norms, and a frontal attack on the rule of law.

It is one more element in America’s current wholesale retreat from the principles that did make America great.

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Welcome to the Resistance

A couple of weeks ago, I was invited to speak to a “Women’s Rally for Change,” along with the Executive Director of Planned Parenthood and the Democratic candidate for Lieutenant Governor. The purpose was to discuss how to resist the coming assault on women and minorities, and to answer the increasingly common–and increasingly urgent– question: what can I do? What specific actions can I take?

The Rally was promoted only by Facebook posts; organizers hoped a hundred women might attend. We were stunned when five hundred women crammed into a space meant for far fewer, and another four hundred had to be turned away. (Future events, in larger venues, will be posted to a Facebook page established in the wake of the event: Women4ChangeIndiana.)

Several people who could not attend have asked me for copies of my remarks, so I’m posting them here. (Regular readers of this blog will find much of what follows repetitive….sorry about that!)

_________________________

We are facing divisions in this country unlike anything we’ve seen since the 60s, or maybe the Civil War. If America is to emerge reasonably intact, we need to look honestly at what just happened.

The ugly truth is that most of his voters saw Trump’s bigotry, misogyny and authoritarianism as features, not bugs. They didn’t overlook his appalling behaviors—those were what attracted them. They applauded his repeated attacks on “political correctness” and routinely told reporters that what they liked about him was that he “tells it like it is.”

The attitudes most predictive of support for Trump were racial resentment and misogyny—not economic distress.

Clinton won the popular vote, but because the Electoral College gives greater weight to votes from rural areas, she lost the Presidency. This is the 2d time in 16 years that the person who won the most votes was not elected.

The next few years are going to be very painful. Americans will lose many of the protections we have come to expect from the federal courts, probably for the foreseeable future. Economic policies will hurt the poor, especially women and children, and exacerbate divisions between the rich and the rest of us. A Trump Administration will abandon efforts to address climate change, and will roll back most of Obamacare. There will be no immigration reform, and God only knows what our foreign policy will look like. Worst of all, Trump’s normalization of bigotry will play out in a variety of ways, none good.

Sandy asked us to focus our comments on issues affecting women—but when you think about it, all of these issues will disproportionately affect women and children. And by far the worst for women is something we can’t reverse through legislation at some future time—a return to cultural attitudes that objectify and demean us.

So – what can we do, sitting here in overwhelmingly Red Indiana?

As individuals, beginning right now, we can support organizations that work to protect women’s rights, civil and reproductive liberties and public education, among others. A friend of mine and her husband, who stand to benefit from Trump’s proposed tax cuts, have decided to donate every dollar they save by reason of those cuts to organizations like Planned Parenthood and the ACLU. We might start a local “pledge my tax cut” campaign.

Perhaps the most important thing we can do is focus on local efforts to ameliorate the effects of likely federal actions. Most of the innovation and action on climate change, for example, is happening in cities, and it is much easier to influence local policy than state or national legislation. Those of us worried about the environment can make sure our cities are at the forefront of urban environmental efforts. There are other policy areas where—depending upon relevant state law—cities can mitigate the effects of federal action or inaction. Since the election, for example, several cities have decided to become Sanctuary cities, protecting undocumented people.

We can and must work to create inclusive and supportive local civic cultures that work against misogyny, bigotry and intolerance. We are already seeing a substantial increase in racist, homophobic, anti-Muslim and anti-Semitic incidents, and we need to create a civic environment that strongly discourages bigoted attitudes and behaviors. Cities have ready-made partners in those efforts, in arts organizations, civic and religious associations and the business community. I hereby volunteer to help mount a campaign focused on encouraging a welcoming, inclusive, respectful civic environment.

And if  the new Administration really does establish a Muslim registry, we all need to register as Muslims.

In the longer term, we have to reform America’s election system. The first order of business is to get rid of the Electoral College, which favors rural voters over urban ones and generally distorts the democratic process. The person who gets the most votes should win the election. We should work with groups like the League of Women Voters to get Indiana to sign on to the National Popular Vote Project, to oppose gerrymandering and to make voting easier, not harder.

We also have to defend our public schools and improve civic education. “We the People” or a similar curriculum should be required for High School graduation. Trump made all kinds of promises that he could not constitutionally carry out. Perhaps recognizing that wouldn’t have mattered to the kind of people willing to vote for him—but it might have.

Sandy asked each of us to identify issues of particular significance to women that we might win at the Statehouse. Given the composition of our legislature, we face an uphill battle, but here are some suggestions:

  • Work with local business and civil rights groups to expand Indiana’s civil rights law to include LGBTQ Hoosiers.
  • Work with Planned Parenthood, the ACLU and other organizations to prevent passage of added restrictions on abortion that more conservative courts would uphold. We’re already seeing that effort in Indiana.
  • Work with advocates for public education to scale back Indiana’s voucher program, the largest in the country, that benefits parochial schools at the expense of public ones.
  • Require effective civic education for graduation from H.S.

If there has ever been a time to be an activist, this is it.

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