Tag Archives: congress

Legal Nostalgia

A former student recently needed a copy of the syllabus I’d used in her graduate Law and Policy class back in 2010. When I reviewed it, I was struck by the changes effected by Trump, MAGA, and our current, corrupt Supreme Court majority. I became positively nostalgic for the legal environment of my time in the classrooom–nostalgic for the “black-letter law” and for precedents that were considered settled by my cohort of lawyers and law professors.

In that syllabus, I explained the course as follows:

___________

This course will examine the response of the American legal system, with its historic commitment to individual liberty and autonomy, to the growth of the administrative state and to an increasingly complex social environment characterized by pluralism and professional differentiation. We will discuss conflicting visions of American government and different approaches to public administration, and consider how those differences have affected the formation and implementation of public policy within our constitutional framework. Throughout, we will consider the constitutional and ethical responsibilities of public service—the origins of those responsibilities and their contemporary application.

While relatively few people will become public officials or public managers, all Americans are citizens, and most citizens will participate in the selection of public officials and will take positions on the policy issues of the day. Accordingly, this course is intended to introduce all students to the constituent documents that constrain public action and frame policy choices in the American system. These explorations will inevitably implicate political (although not necessarily partisan) beliefs about the proper role of the state, the health of civil society, and the operation of the market. To the extent possible, these theoretical and philosophical beliefs will be made explicit and their consequences for policy and public sector behavior examined. The goal is to help students understand why certain policy prescriptions and/or public actions attract or repel certain constituencies, and to recognize the ways in which these deeply held normative differences impact our ability to forge consensus around issues of public concern.

In the course of these inquiries, we will consider the implications of the accelerating pace of social change on issues of governance: globalization, especially as it affects considerations of legal jurisdiction; the increasing interdependence of nations, states, and local governmental units; the blurring of boundaries between government, for-profit and nonprofit organizations, and the effect of that blurring upon constitutional accountability; the role of technology; and the various challenges to law and public management posed by change and diversity, including the  impact and importance of competing value structures to the formation of law and policy.

By the end of the semester, students should be able to recognize legal and constitutional constraints on public service and policy formation, and to identify areas where public policy or administration crosses permissible boundaries. They should be able to recognize and articulate the impact of law and legal premises on culture and value formation, and to understand and describe the complex interrelation that results.

_________

During my years on the faculty teaching law and policy, it never occurred to me that I would live in an America where a President and virtually everyone in his administration would find the foregoing paragraphs incomprehensible–where individuals in positions of authority would reject–indeed, be unfamiliar with– the very concept of Constitutional restraints, let alone the existence and importance of civil society and/or competing arguments about the proper role of government.

I certainly wouldn’t have anticipated that so many of the ambitious politicians serving in the House and Senate–men and women presumably concerned for the national interest– would neuter themselves in slavish submission to a man whose ignorance of government and policy and whose intellectual and moral deficits were impossible to ignore even before the emergence of unmistakable dementia.

I would have rejected as fanciful the notion that a duly constituted United States Supreme Court would substitute partisan ideology and Christian nationalism for the rule of law, upending years of settled precedents and thoughtful, considered jurisprudence, not to mention the Separation of Powers that lies at the very heart of our constitutional architecture.

And yet here we are.

Forgive this somewhat whiney post, but coming across my old syllabus has made me nostalgic for the legal world I once inhabited. It wasn’t perfect, but it was infinitely preferable to our current reality, and we need to recover, reinstate, and improve it.

Comments

What “Separation of Powers”?

I spent 21 years teaching university students that lawmakers’ policy decisions are constrained by the U.S. Constitution. I approached my classes in Law and Public Policy through a constitutional lens–an approach that began by emphasizing that Separation of Powers is a fundamental element of America’s governing structure.

Separation of Powers is the technical term for the division of government authority among the three branches: the executive, the legislative, and the judicial. When the men we now think of as “the founders” undertook revision of the Articles of Confederation (a revision that turned into a wholesale jettisoning), their concern for limiting the power of government led them to divide governmental power two ways–through federalism, which separated the jurisdictions of local, state and national government units, and through Separation of Powers--the allocation of specific powers to each of the three branches. They were very explicit about the purpose of that structure, which was to limit the ability of any one branch of government to exercise too much control.

When media pundits talk about Trump’s persistent violations of the Constitution, they tend to focus on how his actions violate specific elements of that Constitution (the assault on birthright citizenship, fiscal  decisions that are specifically within the purview of Congress, etc.). What we are experiencing, however, is an even more fundamental breach of our founding philosophy–a breach quite correctly identified in the recent “No Kings” protests.

The incredible damage that Trump has done and is continuing to do has been dependant on the abdication of the legislative branch, and the evisceration of the power of the courts. Not all the courts, but very definitely the Supreme Court.

The fecklessness and cowardice of the few Congressional Republicans who haven’t drunk the MAGA Kool-Aid is widely understood. (Here in Indiana, we have one of each: a Christian Nationalist MAGA idiot who was elected because he had an R by his name in our deep-Red state, and a far brighter coward who undoubtedly understands how destructive this administration is, but displays continued fealty to our would-be King in order to protect his re-election prospects.)

The GOP cult that currently controls Congress has neutered the authority of the legislative branch, turning it into a body that obediently acquiesces to whatever passes for policy from the increasingly insane occupant of the Oval Office.

The situation of the courts is different. As Talking Points Memo recently reported, the lower courts have been doing their jobs. District and appellate judges appointed by both Republican and Democratic Presidents have handed down decisions that are consistent with both the constitutional text and longstanding precedents.

Stanford University political scientist Adam Bonica compiled data on the administration’s win/loss record in federal courts from May 1 through June 23. He found that in cases brought against its sprawling excesses the Trump administration has lost 94% of the time at the district court level. That’s a truly terrible litigation record. But at the Supreme Court, Bonica found, DOJ won 94% of the time.

The Trump administration has eviscerated the Department of Justice, turning a once-storied, independent agency into Trump’s personal law firm. In its current iteration, the agency has brought cases that would once have been considered legally ludicrous, hoping that the Supreme Court would eventually counter the anticipated negative rulings of the lower courts.

“We are witnessing something without precedent,” Bonica wrote. “[A] Supreme Court that appears to be at war with the federal judiciary’s core constitutional function.”

Administration officials are well aware of how their Supreme Court allies have their back in this campaign to delegitimize the trial courts. “All these district courts throughout the country are tying our hands,” complained Attorney General Pam Bondi, under questioning from Sen. Patty Murray (D-WA) at a Senate Appropriations Committee hearing yesterday. “And here’s how we will follow them—when we get to SCOTUS, we’re winning.”

The Talking Points article accuses Trump’s Department of Justice of  “a completely unprecedented and coordinated vendetta to undermine the authority of federal district courts.” (Not just the federal courts: in April, FBI agents arrested a Milwaukee County Circuit Court judge,  charging her with interference with an arrest by ICE. The FBI’s claims have been contradicted by eyewitnesses who were in the courtroom.) As unthinkable as it would have been in any other administration, the  Department recently sued every sitting judge in the United States District Court for the District of Maryland. Why? Trump’s DOJ wants to invalidate a standing order that ensures an automatic two-day reprieve for immigrant detainees.

When neither the legislature nor the courts assert their constitutional powers, the Mad King is unconstrained. And the U.S. Constitution is history…

Comments

The “Naughty” List

Santa Claus isn’t the only one who is keeping a list of “who is naughty and who is nice.” Charlie Sykes recently brought some limited order out of the chaos of Trump’s first months–a real service, since most of us have been beaten down by the daily firehose of assaults on decency, the Constitution and the rule of law–the tactic Steve Bannon has called “flooding the zone with shit.”

Sykes assembled his list in order to criticize Chuck Schumer, who has finally graduated from sending “stern letters” and moved to block Trump appointees. Sykes asks “What took you so long? Why didn’t you act when”…and then he provides his list of Trumpian assaults that should have prompted active blowback when they occurred.

Granted, Sykes’ list isn’t comprehensive, so intensely has the zone been flooded, but here are the acts that he says should have triggered action from Schumer when they occurred:

  •  blanket pardons for Jan. 6 rioters, including those who assaulted police officers.
  • his purge of the FBI, targeting agents who had investigated his own misconduct.
  • suspending enforcement of the foreign bribery ban.
  • calling for the impeachment of a federal judge who ruled against him.
  • firing the head of the Office of Special Counsel who protects whistleblowers.
  • firing the head of the Office of Government Ethics.
  • firing the prosecutors who worked on Capitol riot investigations.
  • slashing the office that prosecutes misconduct by public officials.
  • dropping charges against New York City Mayor Eric Adams in return for Adams agreement to work with ICE — a move that led to the resignation of the acting SDNY U.S. attorney and several other federal prosecutors.
  • Trump’s refusal to bring Kilmar Abrego Garcia back to the U.S. — stating that he could, but wasn’t going to.
  • Trump’s suggestion to the president of El Salvador that he would send “homegrown” criminals — American citizens — to his notorious prison.
  •  Trump’s executive orders targeting individuals who had criticized him — including Chris Krebs, who had challenged his 2020 election lies.
  • stripping the security clearances of law firms who had challenged him. 
  • Trump’s threats to strip licenses from media critics.
  • allowing Elon Musk’s team to access sensitive and protected taxpayer information.
  • when his top aides were caught chatting about military action on Signal.
  • firing six National Security Council officials on advice from far-right conspiracy theorist Laura Loomer.
  • refusing to rule out the use of military force to seize Greenland. 
  • Trump’s purge of top generals, including the chairman of the Joint Chiefs.
  • sending masked agents to seize people on the streets.
  • arresting international students for little more than for writing op-eds.
  • when White House aide Stephen Miller said that administration was considering suspending habeas corpus.

Sykes list–which I would emphasize is far from comprehensive–was generated as Americans learned of Qatar’s offer of a “gift”–a plane described as a “palace in the sky.”  The offer was, as Sykes says, “a very visible symbol of Trump’s susceptibility to corruption.” But–as he also reminds us– we have seen countless other examples.

Sen. Chris Murphy, for example, has been banging the drum about Trump’s potential $TRUMP crypto conflict of interest for months. “My hair has been on fire about the meme coin from day one,” Murphy told The Washington Post. “That is a level of corruption that is just absolutely stunning. It was already the most corrupt thing a president has ever done in the history of the United States.”

What didn’t make Syke’s list is the Trump administration’s effort to neuter the other two branches of government.

Under the Constitution, Congress and the courts are “co-equal” with the Executive branch, but Trump and MAGA have bullied the Republicans in Congress into submission. (Given that the GOP is currently in the majority, Democrats have been left with limited options for resistance–a good reason to put those options to maximum use.)

Unlike Congress, the courts–at least, the lower federal courts–have fulfilled their Constitutional role. They have ruled for the plaintiffs in virtually every case challenging Trump’s illegal and unconstitutional actions–but while Trump has given lip service to obeying those rulings, he continues to ignore a number of them. At the same time, he has increased his threats against judges who dare to rule against him, and MAGA thugs (Trump’s “brownshirts”) have taken to issuing threats against the judiciary and their families.

We the People need to leave a large civic lump of coal in the Trump stocking. Sooner rather than later.

Comments

What The Fire Hose Obscures…

Perhaps the most disconcerting aspect of what has aptly been called the “firehose” of unconstitutional, illegal and profoundly stupid actions being taken by Trump and DOGE is the public’s corresponding inability to understand it all–to keep track of the assaults on the multiple responsibilities of government, and to recognize the immensity of the harms being done.

It’s all too easy to focus on the pettiness and bigotries–the erasures of the contributions of Blacks and women from official websites, the withdrawal of Secret Service protections from those on Trump’s extensive “enemies” list, the threats to law firms that represent people on that list…etc. etc. But while we are appalled by the lack of backbone being demonstrated by many of those targets (and all of the Republicans in Congress), we are missing less reported actions that are wreaking incalculable harms.

Last Sunday, the New York Times reported on one of those actions.

In a climate-controlled bunker in an unremarkable building in rural Aberdeen, Idaho, there are shelves upon shelves of meticulously labeled boxes of seed. This vault is home to many of the United States’ more than 62,000 genetically unique lines of wheat, collected over the past 127 years from around the world.

Though dormant, these seeds are alive. But unless they are continually cared for and periodically replanted, the lines will die, along with the millenniums of evolutionary history that they embody.

Since its establishment in 1898, the United States Department of Agriculture’s National Plant Germplasm System and the scientists who support it have systematically gathered and maintained the agricultural plant species that undergird our food system in vast collections such as the one in Aberdeen. The collections represent a towering achievement of foresight that food security depends on the availability of diverse plant genetic resources.

In mid-February, Trump administration officials at what has been labeled the Department of Government Efficiency fired some of the highly trained people who do this work. A court order has reinstated them, but it’s unclear when they will be allowed to resume their work. In the meantime, uncertainty around additional staffing and budget cuts, as well as the future of the collections themselves, reigns.

As the article notes, America’s food system relies on our ability to respond to the next plant disease or other emergent threat, and this little-known agency is essential to our preparedness. Across 22 stations maintained nationwide, 300 scientists maintain more than 600,000 genetic lines of more than 200 crop species.

The collections of some crops, like wheat, are in the form of seeds. But others, like apples (2,664 lines), must be maintained as living plants in the open field. The scientists who care for them must follow strict requirements for sustaining genetic purity so they can provide healthy viable seeds or plants to the tens of thousands of researchers and others who request them each year.

The article compares this activity to a survivalist cache. It represents a safeguard against all future challenges to growing the food we need. (You’d think a man with 13 children might care about the future of those children, if not the rest of the human race, but apparently not.)

Moving fast and breaking things may work in some sectors. But the disruptions underway threaten irreversible losses of crop genetic diversity. Such losses directly undermine the United States’ ability to ensure continued food security and dietary diversity amid challenges to our agricultural systems.

The word “irreversible” is chilling–and therein lies the challenge we face.

It isn’t just the fact that Americans have installed a collection of clowns and buffoons–in both the Oval Office and Congress– who lack any ability to govern, or even understand the purpose of government.  It isn’t their ham-handed efforts to erase evidence of diversity–much of which will be countered by  Internet sources. It isn’t even the mean-spiritedness of their attacks on disfavored “Others” (as one participant at a Town Hall put it, “what kind of people are only happy when they are hurting someone else?”). It’s the immense and irreversible damage that is being done, and the fact that the assaults are so widespread that we can’t keep track of them.

We can recover from the economic damage being done, although not without considerable pain as prices increase, tourism vanishes, and working Americans have fewer jobs and less disposable income. We will mourn the unnecessary deaths from vaccine misinformation, termination of medical research and drastic cuts to Medicaid, but the nation will survive those losses.

It’s the irreversible damage being done–to our international alliances, to food safety, to America’s promise of liberty and civi equality, and to who knows what else–that will forever mark this horrible juncture in our national story.

Comments

The Great Regression

We are about to see whether changes to the culture–changes that most Americans have welcomed–can withstand a furious and focused effort to take the country back to the 1950s (if not before).

The federal government is in thrall to a racist maniac pandering to his base of White Christian Nationalists. His minions and his “co-President”–the unelected Elon Musk–have scrubbed federal websites of references to inclusion and fairness, to a variety of minorities and any mention of climate change. They have waged war on America’s humanitarian instincts–choosing to begin their war on the “deep state” by terminating programs that offer food and medical care to impoverished populations in other countries. People are already dying as a result.

The war on “DEI” is just new terminology for the persistent war on racial and gender equality–much like the nonsensical, hysterical assertions that primary schools were teaching Critical Race Theory (a complicated legal theory actually being explored in a few law schools). Facts–as usual–are irrelevant.

Here in Red Indiana, our GOP overlords (who owe their dominance to gerrymandering–aka cheating) have “settled” a lawsuit brought by forced birth organizations by agreeing to open abortion records–violating the privacy of women who have terminated pregnancies. The Governor’s budget proposal has axed monies for the Commission on Women and Martin University, the state’s only majority-Black institution of higher education, and proposes tax “reforms” meant to cripple the governments of (Blue) urban areas. The VA is eliminating its gender neutral bathrooms…the list goes on.

It is anyone’s guess what will happen to the United States as Musk’s young techno-nerds attack sensitive computer systems and Republicans in the House and Senate prove spineless. (Here in Indiana, Senator Jim Banks is a known Christian Nationalist/White Supremacist ignoramus, but Senator Todd Young is even worse, because he clearly knows better but lacks the moral fiber to be true to his oath of office.)

Numerous organizations and individuals have filed lawsuits challenging the illegality and unconstitutionality of the Trump-Musk assaults. Whether adverse rulings will deter the felon and the plutocrat is anyone’s guess.

The larger, longer-range question is: what will happen when the forces of bigotry and regression come into conflict with the widespread cultural changes that characterize today’s society?

In today’s United States, during the last two or three generations, women, people of color, gay folks and others have made enormous progress and assumed numerous roles once exclusively held by straight (or closeted gay) White Christian males. Young Americans are used to working and living with diverse companions. Over 70% of Americans tell pollsters they support same-sex marriage.

Americans have elected a Black President. Black and Jewish and gay celebrities have millions of fans.

It is, of course, precisely that cultural shift that has so enraged and terrified the MAGA bigots who elected Trump. Their fear and hatred makes them a cohesive movement, unlike the people who comprise what I am convinced is the majority–rational Americans of good will. The existence of a media ecosystem constantly pumping out White Christian Nationalist propaganda has been enormously consequential in shielding the members of the MAGA movement from information that might challenge their prejudices.

Worse, traditional media sources have been far too willing to “sane wash” and normalize very non-sane and non-normal behavior. As a result, massive numbers of Americans have remained unaware of the threat to our governing institutions and social progress. Americans who didn’t see a threat, didn’t recognize the danger, also didn’t bother to vote.

We are currently facing multiple, existential threats: to efforts to curb climate change, to the civic inclusion of women and minorities, to public health, to government programs that keep millions of Americans out of poverty and assist suffering people around the globe, and to national security. (The changes being made to national computer systems are likely to allow unfriendly foreign governments to hack into critical information.)

Even if a massive uprising by rational citizens brings a halt to the worst of what we are experiencing, America’s role in the world has taken an enormous hit. Trump’s clown car of bizarre and unqualified appointees, his fixation with tariffs, his ridiculous announcements that he wants to take over the Panama Canal, Greenland, and now Gaza, his unconscionable termination of humanitarian aid, his constant threats of war on (nonWhite) immigrants–all have dealt a serious, perhaps fatal blow to America’s global credibility.

There’s nothing sane people can do about that loss of stature–but we can and must rise up to protect the progress we’ve made toward realizing the American values our Founders bequeathed us. We sure can’t count on the Todd Youngs of the country to protect those values.

Comments