A Lesson On The Constitution

Jamin Raskin was a Professor of Constitutional law when I met him, many years ago now. That meeting occurred only because Beverly Hudnut was in his law school class at American University, and introduced us when I was in D.C. Raskin had recognized the Hudnut name from the famous First Amendment case that struck down an Indianapolis ordinance outlawing an ill-defined “pornography”–a case on which I had served as local counsel.

Raskin was an impressive constitutional scholar and teacher, and his subsequent performance as a legislator from Maryland and activist for the National Popular Vote Project has been equally impressive. That’s why his recent Washington Post op-ed on the proper relationship of the executive and legislative branches during the current constitutional crises is well worth reading.

He began by documenting the current–unprecedented– intransigence of the Executive branch:

Constitutional crisis looms, preceded by constitutional illiteracy and confusion, which now hang like a thick fog over Washington. President Trump’s administration refuses to cooperate with any congressional investigations he disfavors, drawing a curtain over the executive branch and blockading our oversight work: His treasury secretary has declinedto produce the president’s tax returns, as demandedby the House Ways and Means Committee under federal statute. His attorney general has refusedto comply with a House Judiciary Committee subpoena for special counsel Robert Mueller’s unredacted report and the evidence underlying his findings, and he has orderedJustice Department official John Gore not to testify before the House Oversight and Reform Committee (without even bothering to assert a legal privilege). Trump is suingHouse Oversight Committee Chairman Elijah Cummings (D-Md.) for seeking documents from one of the president’s accounting firms. And the White House has directedformer counsel Donald McGahn and other witnesses not to appear before Congress. “Congress shouldn’t be looking anymore,” the president-king proclaims. “This is all. It’s done.”

Oversight isn’t the only area where the president thinks he can supersede and supplant Congress. He believes he can declarea national security emergency when lawmakers reject funding for his border wall — and then reprogrammoney Congress has appropriated for other purposes to build the wall behind our backs. And despite the fact that his main job is to “take Care that the Laws be faithfully executed,” as the Constitution’s Article IIprovides, he routinely sabotages the effective administration of the Affordable Care Act (by starvingrecruitment efforts and promoting“junk” plans) and encourages government officials at the border to violate the law on asylum seekers. All this falls outside of his constitutional power.

Raskin then reminded readers (at least those who paid attention in civics class, assuming they had a civics class) of the traditional story we tell ourselves about “co-equal branches” and the operation of checks and balances.

Then he dissents.

But this naive cliche is now the heart of our current troubles. Congress was never designed as, nor should it ever become, a mere “co-equal branch,” beseeching the president to share his awesome powers with us. We are the exclusive lawmaking branch of our national government and the preeminent part of it. We set the policy agenda, we write the laws, and we can impeach judges or executives who commit high crimes and misdemeanors against our institutions. As James Madison observedin the Federalist Papers, “In republican government, the legislative authority necessarily predominates.” Congress is first among equals.

Raskin’s column proceeds by detailing the history and jurisprudence that support his assertion of legislative superiority, and he also illuminates the path by which Presidents have amassed unauthorized powers. I really encourage you to click through and read the column in its entirety.

It’s tempting to think of the president as the main actor in the story of America, because he (or she) is a cast of one. But as the great Rep. Thaddeus Stevens reminded Americans during Reconstruction, “The sovereign power of the nation rests in Congress,” and its members stand around the president “as watchmen to enforce his obedience to the law and the Constitution.”

One of the most disappointing aspects of the travesty that has been triggered by a corrupt and incompetent Executive branch and a President who consistently displays his contempt for the law and his ignorance of even the most basic provisions of the constitution, is the continued refusal of Republicans in the House and Senate to defend the institution and the country they presumably serve.

They should listen to Raskin.And grow some balls.

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Reality Is So Inconvenient

Time Magazine  recently ran a story illustrating the problem with electing stupid, uninformed people.

Numerous media outlets have explained–patiently, and in detail– why Trump’s evident belief that China is paying his tariffs is wrong; they’ve laid out–in painful detail–the way tariffs really work, and why those tariffs are more properly labeled tax increases on the American public.

The Time article addresses a subsequent demonstration of Trump’s utter economic cluelessness.

Tariffs on foreign goods are supposed to help companies that make things in the United States by increasing the costs of products sold by foreign competitors. Indeed, when rationalizing his administration’s increased tariffs on Chinese goods, President Donald Trump on Monday encouraged consumers and businesses to buy goods from countries other than China, or, in what he called the “best idea,” to buy American-made goods.

That would have been good advice, back when American companies were busy manufacturing  horse whips and corsets. These days, however, advice to “buy American” simply displays an embarrassing ignorance about the current realities of  the world of business.

But that advice is almost impossible to follow, as products made in America can contain parts sourced from all over the world. Even the most quintessentially American of goods has parts from somewhere else, whether that be a Ford F-150 pickup, a can of Budweiser, or tire chains from Worcester, Mass. “In the last 20 years, businesses have become much more strategic,” says Kara Reynolds, an economics professor at American University. “More and more often, they are looking at where they can find highest quality and lowest-cost parts so that they can be competitive.” More often than not, that’s China — and that means many U.S. businesses are feeling the pain thanks to Trump’s tariffs.

Trump, as usual, has ignored the warnings of more knowledgable people (a category that includes most sentient humans), and has doubled down on his tariff policy. Farmers have been the most notably hurt, but manufacturers and retailers aren’t far behind. Automobile companies are already feeling the pinch.

The most recent round of tariffs is expected to affect a broad swathe of industries that make products in the United States. “This is playing havoc with the supply chains of Americans producers — increasing their cost and reducing their worldwide competitiveness,” says Robert T. Kudrle, an economics professor at the University of Minnesota. St. Pierre, for example, makes chains and wire rope in its Worcester facility, as it began doing in 1920 when Henry St. Pierre started the company. But as it started facing foreign competition, St. Pierre began buying chain slings and other parts from producers overseas, then cutting them and adding hooks and fittings in the United States.

The cost of those imported chain slings have gone up as tariffs have risen. Even St. Pierre’s horseshoes, which are made completely from U.S. steel, have been affected by the tariffs on foreign goods. As the cost of foreign steel went up, the cost of U.S.-made steel rose too, says Peter St. Pierre, vice president of finance at St. Pierre Manufacturing — and Henry St. Pierre’s grandson. “Everything we do here is steel-related, and over the last year or so, the price of steel has been going up and up,” he said. Increased demand for domestic steel has allowed U.S. producers to raise their prices; one estimatefound that U.S. steel prices have more than doubled since 2015.

Companies affected by the tariffs include a number that make goods in the U.S., thanks to rising duties on imported parts.

A South Carolina plant that assembled televisions using Chinese parts said last yearit was shutting down because of the tariffs. The Beer Institute, which represents 6,000 brewers and 2.2 million American jobs, said thatabout six percent of the cost of beer is the aluminum used in cans, and predicted that higher aluminum tariffs could cost 20,000 American jobs.

Are we tired yet of all that “winning”?

Will his brainwashed base ever decide that it may be time to elect someone with less ego and more functioning brain cells?

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Now He’s Pardoning War Criminals

Every morning, Americans wake up to news of additional Trump efforts to roll back rational regulations, to insult long-time allies, or attack and undermine the rule of law.

And then there’s misuse of the Presidential pardon power.

I’m not talking about his documented efforts to suborn perjury by dangling the promise of a pardon to people like Michael Cohen. I’m not even referring to the shameful pardon of racist lawbreaker Sheriff Joe Arpaio. I’m talking about his recent pardon of a soldier convicted of a war crime, and his publicized intent to pardon others who have committed such crimes.

Senior U.S. officials have reported that Trump has been examining high-profile war crimes cases from Iraq and Afghanistan, and that he has had aides preparing paperwork so that he can issue pardons.

Not only would such pardons encourage horrific behaviors, they would put American soldiers at risk.

The possibility that Trump could issue pardons has brought a flood of opposition from current and former high-ranking officers, who say it would encourage misconduct by showing that violations of laws prohibiting attacks on civilians and prisoners of war will be treated with leniency.

“Absent evidence of innocence or injustice, the wholesale pardon of U.S. service members accused of war crimes signals our troops and allies that we don’t take the law of armed conflict seriously,” retired Army Gen. Martin Dempsey, the former chairman of the Joint Chiefs of Staff, said in a tweet Tuesday. He added: “Bad message. Bad precedent. Abdication of moral responsibility. Risk to us.”

Time Magazine ran a column by retired Admiral James Stavridis in which he reminded readers that service members convicted of these crimes had received more than adequate due process:

The circumstances, motivations, outcomes and punishments all differ. But [the cases] share one crucial element: the military members went through, or still face, the military judicial system, which includes a strong presumption of innocence by fellow military members; a very high bar for conviction; a set of judges, prosecutors and defense teams composed of military personnel, most with real combat experience themselves; and a fully engaged appellate system that likewise was composed of military judges. While there may be a very atypical case wherein a Presidential pardon could right an obvious wrong, such a situation is extremely rare — the punishments meted out take fully into account the circumstances.

These individuals have been convicted by their peers of violating both the laws of war and the code of military conduct.

It appears that President Trump is considering pardoning those men, as well as other military members credibly charged with a variety of crimes, including murdering an enemy captive or killing unarmed civilians. (The President is also reportedly considering pardoning a security contractor twice convicted by a federal court.) All of these actions are gross violations of the laws of war and the U.S. code of military conduct. They are extreme ethical and moral failures.

The Admiral also warned of the consequences of issuing such pardons: it would undermine American military standards, be a gift to enemy propagandists, and further undercut our relations with allies (who have strong systems in place to prevent these kinds of actions).

Worst of all, such an action would encourage our enemies to engage in barbaric behavior.

This kind of pardon disrespects every single one of our soldiers, sailors, airmen and Marines who follow the strict standards of the Code of Conduct. They do not abuse captives who have surrendered, use torture to interrogate, cause needless casualties to civilians through collateral damage or desecrate corpses.

In the New York Times, columnist Jamelle Bouie described the conduct for which these men had been convicted.

Last year, a federal jury in Washington convicted Nicholas Slatten, a former security contractor, of first-degree murder for his role in killing one of 14 Iraqi civilians who died in 2007 in a shooting that also injured more than a dozen others. Matthew Golsteyn, an Army Green Beret, was charged late last year with the murder of an unarmed Afghan man during a 2010 deployment. Edward Gallagher, a Navy SEAL who served in Iraq, was reported to authorities by his own men, who witnessed him “stabbing a defenseless teenage captive to death,” “picking off a school-age girl and an old man from a sniper’s roost” and “indiscriminately spraying neighborhoods with rockets and machine-gun fire.”

Why would any President–even Trump–want to pardon such behavior?

For Trump, this toughness — this willingness to act cruelly and brutally — is a virtue. That’s especially true when the targets are racial others.

We saw this 30 years ago when he called for the return of the death penalty in the wake of accusations against the Central Park Five. We saw it during his presidential campaign, when he called for American soldiers to commit war crimes in the fight against the Islamic State. “The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families,” Trump infamously said during a 2015 interview on “Fox & Friends.”

This is the moral code of a caveman. Or a Nazi.

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Trump–Frankenstein’s monster

Regular readers of this blog–for that matter, even occasional readers–could hardly avoid noticing that I’m no fan of Donald Trump. When I read through the comments, it’s pretty obvious that most of my readers are equally repelled.

Sometimes, however, it is hard to put into words the (numerous) reasons so many usually civil and thoughtful people become tongue-tied and sputter when asked to identify the characteristics that most appall them–which is why I’m sharing one of the best descriptions I’ve encountered.  (If I did embroidery, I’d make it into a wall hanging….)

It’s from an Englishman, and the British do have a way with words.

Trump lacks certain qualities which the British traditionally esteem.

For instance, he has no class, no charm, no coolness, no credibility, no compassion, no wit, no warmth, no wisdom, no subtlety, no sensitivity, no self-awareness, no humility, no honour and no grace – all qualities, funnily enough, with which his predecessor Mr. Obama was generously blessed.

So for us, the stark contrast does rather throw Trump’s limitations into embarrassingly sharp relief.

Plus, we like a laugh. And while Trump may be laughable, he has never once said anything wry, witty or even faintly amusing – not once, ever.

I don’t say that rhetorically, I mean it quite literally: not once, not ever. And that fact is particularly disturbing to the British sensibility – for us, to lack humour is almost inhuman.

But with Trump, it’s a fact. He doesn’t even seem to understand what a joke is – his idea of a joke is a crass comment, an illiterate insult, a casual act of cruelty.

Trump is a troll. And like all trolls, he is never funny and he never laughs; he only crows or jeers.

And scarily, he doesn’t just talk in crude, witless insults – he actually thinks in them. His mind is a simple bot-like algorithm of petty prejudices and knee-jerk nastiness.

There is never any under-layer of irony, complexity, nuance or depth. It’s all surface.

Some Americans might see this as refreshingly upfront.

Well, we don’t. We see it as having no inner world, no soul.

The writer goes on to say that Trump is not merely a spoiled child of wealth, but “A Jabba the Hutt of privilege.” There’s an image I won’t soon forget!

And worse, he is that most unforgivable of all things to the British: a bully.

That is, except when he is among bullies; then he suddenly transforms into a snivelling sidekick instead.

There are unspoken rules to this stuff – the Queensberry rules of basic decency – and he breaks them all. He punches downwards – which a gentleman should, would, could never do – and every blow he aims is below the belt. He particularly likes to kick the vulnerable or voiceless – and he kicks them when they are down.

So the fact that a significant minority – perhaps a third – of Americans look at what he does, listen to what he says, and then think ‘Yeah, he seems like my kind of guy’ is a matter of some confusion and no little distress to British people, given that:

Americans are supposed to be nicer than us, and mostly are.
You don’t need a particularly keen eye for detail to spot a few flaws in the man.

This last point is what especially confuses and dismays British people, and many other people too; his faults seem pretty bloody hard to miss.

After all, it’s impossible to read a single tweet, or hear him speak a sentence or two, without staring deep into the abyss. He turns being artless into an art form; he is a Picasso of pettiness; a Shakespeare of shit. His faults are fractal: even his flaws have flaws, and so on ad infinitum.

God knows there have always been stupid people in the world, and plenty of nasty people too. But rarely has stupidity been so nasty, or nastiness so stupid.

He makes Nixon look trustworthy and George W look smart.

In fact, if Frankenstein decided to make a monster assembled entirely from human flaws – he would make a Trump.

I have taken the liberty of quoting most of the post, because it is so perfect–it captures virtually everything I find despicable about Trump and incomprehensible about the people who–despite it all–support him.

Some even, apparently, like him.

That’s the worst part of all of this–the fact that so many Americans can look at the damage being done, not just to this country’s policies, norms and institutions, but to the very ideal of decency, by this fatuous, empty, self-absorbed facsimile of a human, and not recoil in disgust.

I want to ask them: are you raising your children to behave like this?

For that matter, if you were drinking in a bar, and someone at the other end of that bar was bragging ungrammatically and embarrasingly like Trump, wouldn’t you assume there was something really, really wrong with the guy, and edge away?

The last poll I saw gave him a 38% approval rating. It’s shaken my faith in my fellow-humans.

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Sad But True

Vox recently had an article detailing the environmental efforts of “subnational” units of government.

The actions being taken by a number of states and cities to curb greenhouse gases and slow climate change are impressive, and we should all be grateful that the anti-science, anti-humanity policies of our federal government are being countered, at least to some extent, by state and local units of government.

The article began, however, with a coy promise: to reveal the “very simple” political trick that cities and states can employ to pass sound environmental policies. It even titled the article “This one weird trick can help any state or city pass clean energy policy.”

Federal climate politics in the US remains as gridlocked as ever, but the past few years have seen a remarkable flourishing of climate and clean energy policy at the subnational level, in states and cities across the country.

This has given rise to all sorts of deep analysis — about the potential and limitations of states as laboratories of democracy, about the role of cities in the 21st century, about the ability of subnational actors to offset federal inaction — but, oddly, the simplest lesson of all often goes unstated.

In point of fact, all these subnational jurisdictions, for all their differences, used the same simple trick to achieve policy success.

What is that trick? Well, it’d be no fun if I just told you!

Instead, let’s run through a quick review of recent subnational policy progress on climate and clean energy. Perhaps, by the end of this list, if you squint just right, you’ll see the trick for yourself.

The article then proceeded to identify a number of places doing the heavy lifting: Washington state, where Democratic Gov. Jay Inslee, working for the first time with solid Democratic majorities in both houses of the state legislature, passed a suite of ambitious bills; Nevada, where newly elected Democratic Gov. Steve Sisolak, working with Democratic majorities in both houses of the state legislature, committed the state to 50 percent renewable electricity by 2030 and 100 percent carbon-free electricity by 2050;
Colorado, where newly elected Democratic Gov. Jared Polis, together with Democratic majorities in that state’s legislature, has passed what the article called “an astonishing suite of climate and clean energy bills.”

The article also noted progress in New Mexico, New Jersey and California, and listed encouraging deliberations in New York, Massachusetts and Maine.

And it wasn’t just states. As the article reported, Los Angeles Mayor Eric Garcetti and the city’s Democratic city council unveiled “LA’s Green New Deal.” New York Mayor Bill de Blasio and the city’s Democratic council passed a sweeping set of climate bills, which would, among other things, target emissions from existing buildings. Chicago Mayor Rahm Emanuel and his Democratic city council passed a bill committing the city to 100 percent renewable energy by 2035.

The article detailed similar successes in Boise, Idaho, Missoula, Montana, Cincinnati, Ohio and Washington, D.C.

So what do all these jurisdictions have in common? What “trick” enabled these state governments to address the threat of climate change so aggressively?

The trick is: elect Democrats.

There are many differences among these jurisdictions in size, ambition, and policy details, but one thing they all have in common is that Democrats have the power to pass policy despite Republican opposition. It’s not that no Republicans voted for any of these measures — there were R votes here and there, so some could charitably be called “bipartisan” — but that Republicans were not in a position to block any of them.

Last year, Nevada had a Republican governor; he vetoed a clean energy mandate. This year it has a Democratic governor; he signed it.

That’s how it works, in practice. When Democrats take control, in numbers that preclude Republican veto power, they pass thoughtful, ambitious policies to reduce greenhouse gas emissions and accelerate the clean energy transition. Where Republicans have the power to block such policies, they do. There are exceptions — all hail Illinois— but they are comparatively rare.

Perhaps climate and clean energy shouldn’t be partisan. But at the present moment, purely as a descriptive matter, they are partisan.

If you care about the environment,  the simplest and most reliable way to support sane environmental policies is to vote Democratic.

Of course, that’s also the “trick” if you care about civil rights, the Constitution, the rule of law…

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