Category Archives: Constitution

About Those Executive Orders…

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

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

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

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

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

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

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

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

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

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

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JD Vance Spills The Beans

Last Wednesday, I focused on two introductory paragraphs in one of Heather Cox Richardson’s daily Letters. Today, I want to revisit another paragraph from that same letter, in which Richardson quotes from a speech made by our creepy, faux “Hillbilly” Vice President.

Here’s that quote, from a 2021 interview.

“American conservatives…have lost every major powerful institution in the country, except for maybe churches and religious institutions, which of course are weaker now than they’ve ever been. We’ve lost big business. We’ve lost finance. We’ve lost the culture. We’ve lost the academy. And if we’re going to actually really effect real change in the country, it will require us completely replacing the existing ruling class with another ruling class…. I don’t think there’s sort of a compromise that we’re going to come with the people who currently actually control the country. Unless we overthrow them in some way, we’re going to keep losing.” “We really need to be really ruthless when it comes to the exercise of power,” he said.

That quote is the very essence of MAGA– the whine of White Christian males who are furious that American culture is depriving them of “ruling class” status, and who are determined to take the country back to the “good old days” when women, Black people and other “inferior” sorts knew our place.

I have previously noted that what Trump, Vance, Musk and the rest of MAGA are trying to do is inconsistent with today’s American culture–a point with which Vance rather obviously agrees. The question is: when politically powerful officials attempt to change the culture–when they embark on a project to reverse cultural changes–can they succeed?

Can this administration fulfill JD Vance’s fondest hope, and return us to the 1950s?

I doubt it, although they are certainly trying. (The recent attack on the Smithsonian Institution is a case on point, as are  efforts to erase the contributions of women and minorities from government websites, and restore Confederates names to national monuments.)

I found an excellent 2020 essay on this point, in a publication called The Minnesota Reformer. It’s worth reading in its entirety. The author suggested that in 2016, Republicans “decided to nominate the man who most loudly voiced their fears, who promised most explicitly to protect them from the cultural changes threatening them.”

Conservatives may argue that with laws such as the Civil Rights Act and Voting Rights Act, American liberals have indeed used the political system to drive cultural change, but that argument confuses cause with effect. Those laws, while historic, did not drive cultural change, they were the products of cultural changes that had already occurred. The civil rights movement of the ‘50s and early ‘60s, brought into American living rooms by the new technology of television, had made people see things differently, to think about things differently. Only after the civil rights movement changed hearts and minds, after it changed what was deemed culturally acceptable, were the laws changed to reflect that culture.

The essay argues that America’s government, with its constitutional limitations,

is not capable of producing cultural change on the scale that we are witnessing. It can slow such changes, for a while; it can adapt to them and regulate them and in the end it must reflect them, but it cannot create them. Only highly intrusive governments such as Soviet Russia, Communist China, Nazi Germany and revolutionary Iran can force such profound change.

As the writer notes later in the essay, “A government that is large enough, intrusive enough and brutal enough to tamp down cultural change in such an environment is not a government consistent with American traditions.”

JD Vance–a Yale Law “hillbilly”–clearly understands that. So do the (few) intellectuals in the MAGA movement–and so did the authors of Project 2025. Thus, the obvious conclusion: if only “highly intrusive” governments like Russia and Nazi Germany are able to force the changes they want, then America’s constitutional democracy must be replaced with such a government. Trump, Vance, Musk et al are proceeding at a furious pace with an effort to replace America’s admittedly messy and contentious liberal democracy with a fascist regime that will be capable of Vance’s desired “ruthless exercise of power.”

The author of the linked essay suggests that we may be witnessing the last stage of the culture wars, “the deciding battle of a decades-long effort by conservative Americans to enlist government as their champion against cultural changes that they have long fought against.”

Those of us who believe in the American Idea (and applaud the cultural changes consistent with it) simply cannot allow that to happen.

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The Time Is Now

I woke up yesterday to heartening news: the liberal candidate had won the race for Wisconsin’s high court, and won it handily, despite the twenty-five million dollars spent by Elon Musk to support her opponent. (Actually, that is an inaccurate statement–she won, at least partly, thanks to Musk’s obscene financial support of her opponent.) And although Democrats lost the special races in Florida, they vastly over-performed in those deep Red districts.

Cory Booker had just stepped down from making the longest recorded speech in Senate history–a speech in which he laid out the myriad dangers posed by a lawless and enthusiastically corrupt administration.

News of these events came as civic activism has continued to rise. Town halls across the country have been filled with angry Americans. As I write this, a nationwide protest warning the administration to keep its Hands Off our governing institutions and constitutional order is scheduled for this Saturday, April 5th. That event will join an unprecedented number of prior protests: the Harvard Crowd Counting Consortium reports that “in 2025 our research shows that street protests today are far more numerous and frequent than skeptics might suggest.” In fact, “since 22 January, we’ve seen more than twice as many street protests than took place during the same period eight years ago.”

There’s a tendency to discount the impact of these gatherings, but they are extremely important: not only do they offer “aid and comfort” to citizens who might otherwise consider themselves alone in their righteous anger, research confirms that such events make both participants and onlookers much more likely to vote.

I’m not aware of any research documenting the effect of lengthy and impassioned Senate speeches, but it certainly seems that the incredible performance by Cory Booker on the Senate floor should resonate with the millions of Americans who are disheartened and terrified by the daily disasters caused by this insane administration–and  evidently it did. The Hill reported that more than 350 million people had liked Sen. Cory Booker’s floor speech on TikTok live as he approached 25 hours, and according to the Washington Post, before he was through, his speech had been liked on TikTok 400 million times.

Those are stunning–and heartening– numbers.

There was a lot to like in Booker’s oration, as Heather Cox Richardson reported. Booker began by invoking John Lewis’ admonition to make “good trouble.”

Standing for the next 25 hours and 5 minutes, without a break to use the restroom and pausing only when colleagues asked questions to enable him to rest his voice, Booker called out the Trump administration’s violations of the Constitution and detailed the ways in which the administration is hurting Americans. Farmers have lost government contracts, putting them in a financial crisis. Cuts to environmental protections that protect clean air and water are affecting Americans’ health. Housing is unaffordable, and the administration is making things worse. Cuts to education and medical research and national security breaches have made Americans less safe. The regime accidentally deported a legal resident because of “administrative error” and now says it cannot get him back.

Booker ended his marathon speech by reminding listeners that, in America, We the People are sovereign.

It starts with the people of the United States of America—that’s how this country started: ‘We the people.’ Let’s get back to the ideals that others are threatening, let’s get back to our founding documents…. Those imperfect geniuses had some very special words at the end of the Declaration of Independence…when our founders said we must mutually pledge, pledge to each other ‘our lives, our fortunes, and our Sacred Honor.’ We need that now from all Americans. This is a moral moment. It’s not left or right, it’s right or wrong.

Millions of Americans are recognizing the truth–and the import–of that last sentence.

We are not engaged in political policy disputes. The folks offering admonitions about “listening to MAGA’s discontents,” or “finding middle ground” have missed what has become ever more obvious, missed the point with which Booker concluded. The choice we face is not between policies A and B and policies C and D. We are not choosing between efficiency and waste. What we face is a stark choice between Constitutional governance and autocracy, between human-kindness and cruelty, between destruction and continuity, between progress toward civic equality and a return to the 1950s and Jim Crow. For Christian Americans, it’s a choice between actual Christianity and Christian Nationalism. For women, it’s a choice between individual autonomy and “the problem that has no name.”

This is a moral moment.

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Why The ADL Is Wrong

Mahmoud Khalil, a Columbia University graduate student, is an activist who participated in last year’s pro-Palestinian campus protests. He was arrested by U.S. immigration agents on March 8 as part of the Trump administration’s pledge to deport anti-Israel student activists. Khalil is of Palestinian descent; he grew up in Syria, and is a permanent resident of the United States. He is married to an American.

His arrest was hailed by some sectors of the American Jewish community, including the Anti-Defamation League, an organization that fights antisemitism. The ADL released a statement applauding the “swift and severe consequences for those who provide material support to foreign terrorists”–this, despite the fact that there is no evidence whatsoever that Khalil provided such support.

Other Jews understand what the ADL does not– that “defending” Jews and other minorities requires support for an open society where individuals are free to voice any and all opinions, even those we may find offensive. Jews are far less safe when those in authority are free to punish people who express ideas with which they disagree. And that is clearly what this Trumpian assault on the First Amendment is all about. 

As Rolling Stone has reported,

The Trump administration has provided no evidence supporting a link between Khalil and Hamas — which is a U.S.-designated a foreign terrorist group — or documentation of Khalil advocating violence. Khalil has not been charged with any crime. Trump and his administration are nevertheless openly bragging that the activist was being forcibly deported and separated from his pregnant wife because of his pro-Palestinian advocacy, and that more arrests will follow.

As I’ve previously noted, the sudden concern over anti-Semitism being expressed by far-Right politicians is jarring to anyone with even a cursory knowledge of the GOP fringe’s historic hatred. When Christian Nationalists suddenly express a desire to “protect” their Jewish neighbors, it’s not just disconcerting–it’s ominous. MAGA’s sudden, pious concerns over anti-Semitism are anything but good-faith. Large numbers of the prominent Republicans who have labeled campus protests “Leftist anti-Semitism” have, like Trump, mainstreamed anti-Jewish rhetoric for years.

And by the way– those pious folks claiming to “protect” us are evidently unable to distinguish between opposition to Israeli policy and anti-Semitism. Plenty of Jews–including the one who writes this blog–oppose Netanyahu and his horrific actions in Gaza. We also oppose the arrest of Mahmoud Khalil.

As an in-depth article in The Guardian documented, “Campus protest crackdowns claim to be about anti-Semitism – but they’re part of a rightwing plan.” The article acknowledged the legitimate discomfort of Jewish students on campus, but noted that it has been used to justify “a powerful attack on academic freedom and First Amendment rights that long predates the student encampments – part of a longstanding rightwing project to curb speech and reshape the public sphere.”

The arrest is a flagrant and unprecedented attack on the First Amendment. Trump’s version of the federal government is claiming the authority to deport people–to revoke their green cards– for the “crime” of advocating positions that the government opposes, actions that are very obviously intended to intimidate and chill speech on one side of a public debate.

Amy Pitalnick of the Jewish Council for Public Affairs–who identifies as a Zionist–understands why the ADL is on the wrong side of this debate. The New York Times quoted her as saying “Any Jew who thinks this is going to start and stop with a few Palestinian activists is fooling themselves, Our community should not be used as an excuse to upend democracy and the rule of law.”

This is not the first time the ADL has failed to understand that Jews ultimately depend for our safety and well-being on the  protection of an open society that honors and respects the civil liberties of all its citizens. 

There’s a great adage I once heard from Ira Glasser, who led the national ACLU for many years. It is particularly pertinent here: Poison gas is a great weapon–until the wind shifts.

The government that can shut down Mr. Khalil today can shut down the ADL tomorrow–and given the documented anti-Semitic background of Trump and his base, it wouldn’t take much of a wind shift. 

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Good-By To The Constitution

As some of you may have noticed, I’ve been providing “Constitutional Minutes” to Women4Change; for the past few weeks, I’ve been sending a brief description of a constitutional provision, and an explanation of how Trump is violating it, to the organization for posting on its webpage. It occurs to me that I should share a couple of those explanations here, in support of my assertion that we are in the midst of a grand-daddy of a Constitutional crisis.

Let’s look, for example, at Trump’s attack on birthright citizenship.

Section One of the 14th Amendment reads as follows: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Trump’s Executive Order, in pertinent part, reads: It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons:  (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

The law is clear. A president cannot repeal part of the Constitution by executive order. Congress cannot repeal a Constitutional provision by passing a new law. Amending the Constitution requires a two-thirds vote in both the House and Senate, and subsequent ratification by three-quarters of the states.

Or let’s look at Elon Musk’s rampage through the federal government.

In our constitutional system, power comes from We the People. Only officials selected through constitutional methods may wield power in our name. Past Supreme Court cases have make it clear that individuals who serve in “continuing” positions and who exercise “significant authority” on behalf of the United States must be appointed consistent with Article II’s  Appointments Clause. That clause sets forth two methods to appoint “officers of the United States.” “Principal” officers must be nominated by the president and are subject to the advice and consent of the Senate.

With respect to “inferior officers,” the Constitution allows Congress to give the appointment power to the president, to the head of a department, or to the courts. However, inferior officers must be subject to the supervision of someone other than the president. Those who report directly to the president are by definition principal officers.

The Appointments Clause subjects individuals wielding significant authority — principal officers —   to Senate confirmation. Elon Musk is clearly wielding significant power (as evidenced by growing references to him as a “co-President.”) His activities through DOGE—a “department” that does not exist—are wreaking constant havoc with the operations of critical government agencies, threatening everything from FEMA’s responses to South Carolina’s fires to the timely delivery of Social Security checks.

There are at least two pending lawsuits alleging that Musk’s power cannot be squared with the Appointments Clause—that to exercise the authority he is exercising, he must be appointed as provided by the Constitution. (One such case, in Maryland, was filed by current and former federal employees and contractors; another, in Washington, D.C., was brought by a number of states.) The judge in the Maryland case said that he was “highly suspicious” of the administration’s (phony) explanation for Musk’s role. The judge in the Washington case has found that  Musk has “rapidly taken steps to fundamentally reshape the executive branch,” with no apparent “source of legal authority” and that his actions appear to describe “precisely the ‘executive abuses’ that the Appointments Clause seeks to prevent.”

Over the past few weeks, I’ve identified several other obvious and egregious violations of America’s founding charter. There are numerous lawsuits pending, and growing public anger, but there is no guarantee that Trump will obey the courts, and thus far, no indications that Congressional Republicans will locate their spines.

Meanwhile, Trump and Musk are busy destroying the federal government’s ability to operate domestically, and betraying our allies abroad.

As the saying goes, we aren’t in Kansas anymore….

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