Category Archives: Public Policy and Governance

Consequences…

As the evidence of Trump’s mental illness gets stronger and more difficult to hide, and the resistance gets stronger, it’s possible to envision an end to MAGA’s horrific assault on America’s philosophy, norms and institutions and to engage in speculation about what comes next. Just how much of the damage being done is irrevocable? What can be fixed, and what harms lie beyond repair?

There is no denying the amount of damage done in just the first hundred days. It isn’t simply the “I’m king (or Pope) delusions–Trump and Musk have mostly resembled toddlers who somehow got control of the family’s technology, not understanding how it works or what the intended uses are–and are just gleefully smashing mechanisms they don’t begin to understand.

The rest of the world has looked on with a mix of horror and schadenfreude. (Our anguish has actually prompted some sanity elsewhere–both Canada and Australia have repudiated Trump-lite candidates in the past couple of weeks.) The Guardian recently reported that the United States has been added to the watchlist maintained by an international organization monitoring democratic progress and regression.

Civicus, an international non-profit organization dedicated to “strengthening citizen action and civil society around the world”, announced the inclusion of the US on the non-profit’s first watchlist of 2025 on Monday, alongside the Democratic Republic of the Congo, Italy, Pakistan and Serbia.

The watchlist is part of the Civicus Monitor, which tracks developments in civic freedoms across 198 countries. Other countries that have previously been featured on the watchlist in recent years include Zimbabwe, Argentina, El Salvador and the United Arab Emirates.

Not exactly the company we’re used to keeping….

The decision to add the US to the first 2025 watchlist was made in response to what the group described as the “Trump administration’s assault on democratic norms and global cooperation.”

In the news release announcing the US’s addition, the organization cited recent actions taken by the Trump administration that they argue will likely “severely impact constitutional freedoms of peaceful assembly, expression, and association.”

It’s instructive that the organization cited assaults in two separate domains: democratic norms that affect our internal governing behaviors, and the attacks targeting international cooperation, because my own reading of the daily damage being done reflects a similar division.

Assuming the success of what I have been calling the resistance, We the People will face the formidable–but ultimately “do-able”– task of reconstructing our federal governing apparatus. It won’t be easy, and a lot of Americans will be badly hurt before repairs can be made. Much like the occupants of a house destroyed by a hurricane, ordinary citizens will have lost a great deal–but they can also (to use Biden’s terminology) “build back better.” (Perhaps the threatened drastic cuts to Medicaid and other social welfare programs will finally prompt us to emulate the other Western countries where citizens have access to national health care systems. Etc.)

In other words, given sufficient time, Americans can repair the domestic damage. That is very unlikely to be the case with our international stature. Trump has demonstrated–vividly–that America cannot be trusted, that we are always just one election away from irrationality and chaos. We are already seeing the EU step up to fill the leadership gap in NATO. (We are also seeing China and Russia savor the moment–a more troubling development.)

America is in the process of learning an important lesson: it’s much too late to retreat from the global economy. Trump’s insane tariffs will hurt us badly, but the fallout will also demonstrate the folly of trying to retreat from an increasingly integrated world ecosystem. We can re-enter the global marketplace and economic reality, but I am convinced that the days of America’s overwhelming global dominance are over. Permanently.

And pardon me for my arguably unpatriotic reaction to that reality: it’s probably for the best. Our efforts to control the international order have too frequently been Machiavellian rather than noble. We have certainly done a great deal of good–which is why the assault on USAID is so horrific–but we’ve also flexed our international muscle in ways that were unwise and even shameful.

A global order in which we actively participate but don’t dominate–an international order in which no one country is able to call the shots–would be a step forward.

And while we’re not telling everyone else what to do and how to do it, we’ll have a civic house to rebuild.

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The War On Women Continues

One of the constants of Trumpism has been its war on women. Trump himself sees women only as sexual objects; the Christian Nationalists who support him see us as “feeders and breeders”– designed by God to submit to men and produce babies.

I was reminded of MAGA’s war on women when I read that Trump’s “big, beautiful budget” will defund Planned Parenthood, among other obscenities that will differentially hurt women.

During the first Trump  administration, Trump blocked women’s access to health care through legislation, regulations, judicial appointments, and legal action, slashing funding for family planning, rolling back rules requiring employers to offer no-cost birth control coverage, and revoking multiple protections against sexual harassment, sexual assault and discrimination.

Trump II has been more of the same–and then some.

Trump has decimated boards that administer workplace anti-discrimination laws, rescinded prior Executive Orders against discrimination, reduced enforcement of the Pregnant Workers Act, and undercut civil rights and anti-discrimination laws across the government, with anti-DEI efforts front and center. The administration has cut funding for research on women’s health, erased vital information from federal websites, and eliminated the Gender Policy Council. It proposes huge cuts to Medicaid, SNAP and other programs disproportionately depended upon by women and children. (There’s much more at the link.)

All of these measures are part of the Right’s hysterical resistance to culture change.

A significant minority of Americans feel existentially threatened by the progress of women and minorities. That progress challenges their worldviews, their beliefs about the “proper” order of the world. Trump was elected by those hysterical people. Even those who recognized his personal repulsiveness supported him because he promised to reverse what most of us consider social progress– to turn back the cultural changes that so frighten and infuriate them.

I wondered what research tells us about whether government can reverse cultural changes, so I looked into it.  

Studies tell us that such efforts face significant structural, social, and generational resistance. It turns out that entrenched social changes are really difficult to reverse. Shifts of attitudes about race, gender roles, sexuality, and religion occured over generations, and as a result, contemporary perspectives on individual autonomy and diversity are unlikely to be reversed.

 
 
 
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Three Cheers For The Indiana Bar!

It’s easy to be critical of Indiana, and especially of the collection of ideologues, MAGA wanna-bes and invertebrates who dominate our state legislature, so it is especially gratifying when an Indiana organization speaks up for democratic governance and the rule of law.

That organization–hopefully, one among many to come–is the Indiana Bar, the organization that represents the legal profession in Indiana. A few days ago, the president of the Bar association released the following statement. In normal times, this statement would be anodyne–a “this is who we are” reminder to citizens who may not appreciate the role of law and lawyers in maintaining stability and civic fairness. But in the Age of Trump and MAGA, it is a heartfelt and incredibly important reaffirmation of the importance of the rule of law and the determination of lawyers to protect it.

Here is that letter.

Each year on May 1, Law Day offers a moment to reflect on the foundational principles that shape our democracy. Chief among them is the Rule of Law, a concept that not only guides our profession but ensures a just and orderly society.

But what exactly is the Rule of Law? And why does it matter?

At its core, the Rule of Law means that no one is above the law and that laws are applied fairly and consistently. It guarantees that our rights and liberties are protected through transparent legal processes. The Rule of Law empowers a parent to challenge a school policy, enables a small business owner to enforce a contract, and protects a citizen who questions government actions. It ensures that power is exercised within bounds, and that all individuals are held accountable under the same legal standards.

The Rule of Law also depends on an impartial and independent judiciary. It is enshrined in both our U.S. and Indiana Constitutions and has long served as a safeguard against tyranny and injustice. Further, under our system of justice, everyone has a right to representation. Lawyers must be free to represent clients without fear of retribution, and clients must be free to choose their counsel without worry of sanction. Our country’s founders, having lived through systems of unchecked authority, built our country rooted in the idea that the rule of law must govern.

Speaking during the first National Law Day in 1958, President Dwight D. Eisenhower said: “The clearest way to show what the Rule of Law means to us in everyday life is to be reminded of what happens when there is no Rule of Law.” He saw this firsthand during World War II while battling Nazi Germany and Imperial Japan. His words remain relevant as we consider the global and domestic challenges that test the strength of our institutions today.

Respect for the Rule of Law is not a given; it must be valued and actively upheld by each generation. One of the greatest threats today is a growing misunderstanding of the Rule of Law. We see its benefits in every trial and every instance of due process. As legal professionals, we have a duty not only to follow the law, but to promote it. That means defending judicial independence, the ability of attorneys to zealously represent clients, and protecting the right of all people to be heard.

President Ronald Reagan put it succinctly: “True peace rests on the pillars of individual freedom, human rights, national self-determination, and respect for the Rule of Law.”

President John F. Kennedy likewise offered this reminder: “Only a respect for the law makes it possible for free people to dwell together in peace and progress… Certain other countries may respect the rule of force. We respect the Rule of Law.”

These ideals are not partisan. They are foundational.

The Indiana State Bar Association stands firm in this commitment. We believe that the Rule of Law is more than a professional ideal, it is the bedrock of our civic life. And we call on every Hoosier attorney, judge, legal professional, and citizen to join us in protecting and promoting it. If the Rule of Law suffers, we all suffer. If the Rule of Law is threatened, we are all threatened. By deeply understanding its significance, honoring its principles, and vigorously defending it, we ensure that the Rule of Law, America’s foundation, endures undiminished.

Let this Law Day be not only a commemoration, but a recommitment.

Michael Jasaitis

ISBA President

Kudos to the Indiana Bar Association!!

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Being An American

I recently happened on a post I wrote in the run-up to the 2000 election, addressing a question that had been posed to me during a speaking event. The question was “What does it mean to be an American, and how will the answer to that question matter in the 2020 election?

I argued that being American requires understanding, supporting and protecting what I have frequently referred to as “The American Idea”– the essential elements of our country’s version of liberal democracy: majority rule and the libertarian brake on that majority rule, aka the Bill of Rights. American identity isn’t based upon race or religion or country of origin–it is based upon support of the American Idea.

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

Those assaults on democratic legitimacy were troubling enough in 2020. They clearly enabled the further assault on American democracy that we are experiencing under a mentally-ill would-be autocrat and his MAGA cult in 2025.

Trump hasn’t limited his efforts to the assault on majority rule. He has also taken Musk’s chainsaw to the individual liberties protected by the Bill of Rights, refusing to recognize–let alone honor– fundamental rights to due process, free speech and (above all) civic equality.

Individual liberty in the United States is protected by the constraints on majority rule required by the Bill of Rights and the 14th Amendment. Those provisions–those protections–mirror the libertarian principle that animated the nation’s Founders: the right of all people to live as they see fit, so long as they do not thereby harm the person or property of others, and so long as they are willing to grant an equal liberty to others. That “live and let live” principle doesn’t just  require limitations on government overreach; it requires that we combat official sanctions of racism, anti-Semitism, homophobia, misogyny, Islamophobia…all of the “isms” that deprive some citizens of equal civic status and that operate to deny them their individual liberties.

It’s one thing to understand Trump himself: he’s obviously damaged– needy, massively ignorant, intellectually limited, declining into dementia. The harder question is, what explains the MAGA cult? What leads millions of presumably sane Americans to cheer on Trump’s defiantly anti-American efforts?

Part of the answer is civic ignorance; understanding and protecting both majority rule and individual rights requires an informed citizenry–something we don’t have, as mountains of data clearly show. When people don’t know how their government is supposed to work, they are less likely to recognize assaults on its governing philosophy. But civic illiteracy doesn’t explain MAGA, although it undoubtedly feeds it.

Racism, White Christian Nationalism and other associated bigotries are at the root of MAGA and Trumpism. America has never been able to overcome the periodic emergence of primal hatreds that motivated the Confederacy and the KKK, despite the fact that those hatreds are contrary to everything that defines Americanism.

Back in that 2020 talk, I said I was convinced that our civic challenge was about America’s structural and systemic distortions—that (assuming a Biden victory) our first order of business should be to confront the misuses of power that make fair and productive political debate about substantive issues impossible–that these failures of American governance needed to be addressed before any of the policymakers we might elect would be able to discuss, let alone pass, rational, evidence-based policies.

The need to address those systemic distortions has become more imperative, as we watch Trump take advantage of them to turn America into a very different country. As I said in 2020, you can’t drive a car if it’s lost its wheels, and you can’t govern if your institutions have lost their legitimacy.

Unless the systems are fair, unless we can rely on obedience to the rule of law by those in office, no minority of any sort–political, religious, racial, economic–is safe.

Assuming we emerge from this lawless and destructive administration more or less intact, we have our work cut out for us.

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About That Rule Of Law…

On Tuesday, I spoke at the Zionsville Christian Church. I had been asked to define what is meant by the “rule of law,” and to explain why it is important. This is what I said. (Warning: longer than my usual posts.)

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Those of you who read my blog know that I refer a lot to the rule of law—how important it is, and how very negative the consequences are when governments ignore or violate it. What I don’t do often enough, however, is explain just what the rule of law is, and why it is the absolute bedrock of democratic governance.

Depending upon how you count them, there are seven essential elements that together make up the rule of law.

You’ve undoubtedly heard the first—the one most often cited by scholars and lawyers. That’s legal supremacy, which means that the law—the same law—applies to everyone. Another way to say that is “No one is above the law.” The importance of equal application of the law to everyone should be obvious; if elected or appointed officials weren’t restrained by the law, if We the People had to obey the laws but those in authority didn’t have to, the result would be what we lawyer types like to call “arbitrary and capricious” behavior by government officials, who would be free to use their authority in unfair and unjust ways, as monarchs used to do.

In democratic countries pledged to the rule of law, we don’t have kings who are free to ignore the rules the rest of us must live by.

The second element is really another version of the first. If the law applies to everyone, then everyone is entitled to equality before the law.  In an ideal “rule of law” system (which I’m compelled to admit we’ve never had), everyone would have equal access to—and equal treatment under– the laws of the land. Things like social status, wealth, elective office, and popular or  unpopular political beliefs wouldn’t affect access to or operation of the legal process or the way the laws are applied to individuals. The rule of law requires us to work toward a system in which laws and legal procedures are applied to all individuals equally and without favoritism.

To take an example from the headlines, under the rule of law, a government accusation that someone is a “bad actor” or a gang member, or “a threat to America” cannot relieve that government of its obligation to demonstrate the validity of such accusations in a court of law before it can punish that individual. That is what is meant by “due process of law” and due process is foundational to a fair and impartial legal system.

The third element of the rule of law is accountability. In other words, We the People are entitled to know what our government is doing, and whether it is functioning in a constitutionally appropriate manner. In the United States, a major element of accountability is built into our constitutional structure—what most of us learned in high school government classes as “checks and balances”—the division of legal authority among the Executive, Legislative and Judicial branches of our government.

We are now seeing what happens to accountability and the rule of law when one branch of our government fails or refuses to exercise the powers granted to it by the Constitution—when the legislative branch allows the executive to appropriate and abuse powers that have been vested in the legislature. Future historians—assuming we have them—will identify that cowardly failure as a rejection of both elective responsibility and the rule of law, and a betrayal of the Constitution and of the individual legislator’s oath of office.

The fourth element of the rule of law is its interpretation and application by a fair and independent judiciary. Federal judges have lifetime appointments because the Founders’ believed that judges should be shielded from political passions and reprisals, that they should be able to apply the law and facts as they see them, free of pressure or bias.

That judicial independence has recently come under an unprecedented attack, when the administration arrested a Wisconsin judge who failed to knuckle under to demands by ICE to turn over a defendant in her courtroom.If Judges can be arrested for disagreeing with the executive branch about their authority,–in this case, evidently because the judge found ICE had an incorrect warrant–we no longer have checks and balances or the rule of law.

The Founders’ goal of judicial independence remains important, but it’s true that in today’s America we have encountered a consequence to lifetime appointments that the Founders didn’t foresee; Americans today live much longer and there is consequently much less frequent judicial turnover –especially at the Supreme Court. That concern is heightened by evidence that at least two members of the current high court are ethically compromised.

The lower federal courts, on the other hand, have been functioning  properly; those courts have issued a number of important decisions upholding the rule of law and restraining Trump’s flood of unlawful and unconstitutional executive orders. Unfortunately, within the legal community there is substantial concern about the degree to which our compromised Supreme Court will uphold those lower court decisions. Should it fail to do so, we risk losing the rule of law.

If we do emerge from this terrifying time with our legal system largely intact, imposing 18 year term limits on Supreme Court justices—as many scholars have suggested– would achieve the Founders’ goal of insulating jurists from political pressure, while also minimizing the risks of judicial senility. (If the legislature once again operates properly, judges shown to be ethically compromised can be impeached.)

The fifth element of the rule of law is certainty. Laws must be clear and understandable in order to allow citizens to know what behaviors are expected of them. When you read that a law has been found “void for vagueness,” it’s because some legislative edict has failed to clearly explain what behavior is being banned or required. Certainty also requires continuity and predictability—meaning legislators should avoid frequent and dramatic changes in the laws that make it hard for citizens to keep abreast of their responsibilities.

The sixth element, again, is implied by others: all citizens must have access to the legal system and the means of redress. That means all are entitled to legal representation and to fair trials with impartial judges.

And finally, the seventh element echoes the protections in America’s Bill of Rights: the rule of law must protect the rights that have been found essential to human liberty—what we call “human rights.” As I used to tell my students, it’s important to recognize that the Bill of Rights does not confer rights on American citizens—it forbids the government from interfering with the inalienable rights that we possess by virtue of our humanity.

Those basic rights include freedom of speech and religion, the right to due process, the freedom to go about our business without arbitrary interference, freedom from excessive, cruel or unusual punishments, the right to trial by jury, the right to be treated equally by our government…in other words, the right to live under a regime that respects the rule of law.

Everything I’ve said so far has revolved around longstanding notions of fairness and morality, but I would be remiss if I didn’t point out that there are also very practical reasons for supporting the rule of law. Mountains of scholarly research have confirmed that countries where the rule of law is established and respected are more stable and have far more robust economies. As we are seeing, uncertainty and chaos are bad for business!

Attacks on the rule of law like those we are currently experiencing destroy trust in government, undermine the economy, and promote conflict and violence.

No government is perfect, and ours certainly can be improved. But  improvements have to be made with fidelity to the Constitution and the rule of law—not from the willful destruction of the underlying philosophy of this country, a philosophy I call “The American Idea.” It is that Idea, that philosophical framework, that insistence on the primacy of the rule of law, that has fostered social progress and truly made America great.

It’s up to We the People to protect it.

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