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.


Facebook Is Making Me Suicidal

I’ve been trying to escape the torrent of stories about the constitutional crisis Trump has precipitated by claiming “Executive Privilege” over the entire Mueller Report and refusing to allow White House functionaries to testify to Congress.

The administration’s escalating assault on constitutional and democratic norms has plunged me into a depression–not just because there is an insane moron in the Oval Office, but–more critically– because not a single Republican Senator is willing to place fidelity to the country over fear of electoral retribution by the party’s rabid base.

Not a single one. They are all fellow-travelers to treason.

As my introductory diatribe probably indicates, I spend a lot of time muttering and despairing…so, recently, I went to my Facebook feed for distraction. (That wasn’t the brightest thing to do, because most of my Facebook friends are as politically irate as I am.)

Here’s what I saw on just a quick scroll:

  • A picture of the student who died in the most recent school shooting, in Colorado. He was three days from high school graduation, and rushed the shooter, saving others. I’m sure the f**ing NRA sends thoughts and prayers.
  • An economic analysis of Trump’s steel tariffs, showing that the cost of each American job created was $900,000. (That is not a typo.) I couldn’t tell whether that number included the extra couple hundred dollars Americans are paying for their washing machines thanks to those tariffs…
  • A NYTimes report that Trump lost 1.17 billion dollars over a decade–the paper obtained tax information detailing the massive losses by our self-proclaimed “deal maker” and also showing that he didn’t pay a dollar of tax during that period. (Now if we could see the more recent taxes he’s so frantic to hide…)
  • Several posts about new anti-choice legislation in Ohio and Georgia. The Georgia version would impose criminal penalties on women who couldn’t prove they didn’t cause their own miscarriages, and would charge women who left the state in order to get legal abortions elsewhere with conspiracy to commit murder.
  • Several posts highlighting despicable statements and blatant lies from Mitch McConnell, aka the most evil man in America. (No, Mitch, it wasn’t Obama’s fault that Russia interfered with our election.)
  • News reports about a group of Neo-Nazis who shoved their way into a Holocaust Memorial ceremony in Arkansas, shouting “Five Million More!” (I’m sure our American Fuhrer would say the group contained some “very fine” people.)
  • A news report that Betsy DeVos’ Department of Education rejected 99% of the applications for loan forgiveness filed by students who were bilked by bogus for-profit “educational” institutions.
  • And this story about a Texas Republican representative who labeled vaccinations “sorcery.” After reading this one, I couldn’t go on.

After deriding public health science as a “scam,” the Representative, one Jonathan Strickland, doubled down on the crazy, telling a pediatrician who works with impoverished children that he was a practitioner of “self-enriching science.” He then engaged in a couple of other illuminating twitter exchanges:

Replying to @RepStickland and 2 others
You are wrong in all particulars, Congressman. As a civil servant, I would expect that you would listen to experts (Peter surely is a leader here) and be…civil. BTW “self enriching science” is myth for almost all of us, but has likely saved your ungrateful life more than once.

Jonathan Stickland@RepStickland
Typical leftist trying to take credit for something only The Lord God Almighty is in control of. Repent!

David Gorski, MD, PhD
Notice how, to these “parental rights” antivaxers, it’s all about THEM: THEIR rights. THEIR religion. THEIR freedom. The child’s right not to be medically neglected, not to be left unnecessarily vulnerable to disease, never even enters the equation. It doesn’t occur to them.

Jonathan Stickland@RepStickland
Replying to @gorskon and 3 others
… You can’t seem to understand the notion of freedom and liberty…you have no right to come between me and my doctor of choice, or between me and my religious beliefs. Leave us alone.

Personal responsibility and parental rights confuse you, I get it. You’re a brainwashed commie, not all your fault.

 What makes all of this so frustrating is the absolute inability to have a rational conversation, grounded in reality and evidence, with the dangerous and demented cult that is today’s GOP.

They aren’t interested in policy, they disdain science, and they’re contemptuous of the rule of law. They have invented a “Christian” theology that is consistent with their fears and hostilities. They are motivated entirely by their visceral hatred of the women and minorities that they fear are “replacing” them.

Bottom line: Facebook didn’t distract me. It just reminded me that I’m powerless to “change the channel.”


Approaching A Major Crisis

Donald Trump is refusing to produce documents demanded–subpoenaed–by Congress, and has instructed members of his administration not to comply with orders to testify to Congressional committees.

If this isn’t a constitutional crisis, the term has no meaning.

As several sources have reminded us, Article 3 of the Articles of Impeachment against Nixon asserted that the President

… has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President. In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.

As Josh Marshall of Talking Points Memo reports,

The White House isn’t doing the standard tussling with Congress about oversight: some stonewalling, some negotiation, taking some questions of privilege to court. It’s more accurately characterized as massive resistance. The Congress has a constitutionally mandated responsibility to oversee the executive branch. They are flatly refusing to comply with ordinary document production and testimonial requests across the board. It’s not a difference of degree but of kind. In itself it is an impeachment worthy refusal to follow the constitutionally mandated framework of American government. It’s up to Democrats to make this clear.

Here’s the very simple bottom line: If a President can refuse to comply with the demands of a Congressional oversight committee–part of a co-equal branch of government– America no longer has checks and balances or the rule of law.

Checks and balances and the rule of law are the very foundation of the American constitution. Governmental legitimacy is defined as adherence to that government’s legal framework–in our case, the constitution. Trump’s defiance is thus evidence of his administration’s lack of legitimacy.

If the Senate, under the control of Mitch McConnell (aka the most evil man in America), fails to stand up for the prerogatives of the Congress, history–assuming we survive to have a history–will brand them traitors. Their first duty is to protect the Constitution and the Separation of Powers; the crisis Trump is precipitating requires them to stop cowering in fear of Trump’s ignorant, rabid base and discharge their obligation to protect America.

(Speaking of ignorance, Trump has said he’ll fight any effort to impeach him by taking the matter to his buddies on the Supreme Court–once again demonstrating his utter cluelessness about constitutional processes and American governance.)

It’s hard to argue with Josh Marshall’s analysis of the current impasse.

But as much as anything else this is a political conflict: how to bring to heel a lawless President. The big error I see so far is that these joustings are being treated as legitimate legal processes which must be allowed to work their way through conventional processes and the courts. That’s not right and it gives the President free rein to try to run out the clock on any sort of oversight. Democrats need to find a language for the political debate that makes clear these are not tedious legal processes which will run their course. They are active cover-ups and law breaking, ones that confirm the President’s bad acting status and add to his and his top advisors legal vulnerability.

There is no hope for Trump; the man is aggressively stupid, proudly ignorant and quite obviously mentally ill (and those are his better qualities!) He is a perfect example of the Dunning-Kruger Effect.

The only question that still remains open is: how many Republican Senators are genuine patriots and how many are self-serving cowards? We’re about to find out.


Pardon Me?

There are multiple reasons to be horrified by Trump’s pre-emptive pardon of the despicable Joe Arpaio.

There’s his usual display of legal and constitutional ignorance: By disdaining the process for determining the propriety of issuing a Presidential pardon and by displaying, once again, contempt for the Separation of Powers that is a foundation of our legal system, Trump has again illustrated that he is the perfect Dunning-Krueger model–an ignoramus who  doesn’t know what he doesn’t know.

Traditionally, Presidential pardons are issued after a person has served some part of his sentence and shown remorse, or alternatively, to correct a miscarriage of justice. There’s a thorough vetting process by the justice department to assess these factors. Trump, of course, ignored these criteria.

If that were the extent of the damage, this typically Trumpian fit of pique would simply be another entry in the extensive list of “reasons we shouldn’t elect people who don’t know what government is or does.” But it’s actually the least significant of the issues involved.

To understand those issues, you need to know some things about Arpaio. From the Guardian, we learn

Arpaio, the self-styled “toughest sheriff” in America, systematically abused his powers during his two decades in office before being voted out last November. Most notoriously, Arpaio commanded his police to detain people solely on the suspicion that they were illegal immigrants, even in cases where the “suspects” had violated no state law. This amounted to a blanket invitation to terrorize the domestic population through egregious practices of racial-profiling.

In 2011, a federal district court judge, a Republican appointee, ordered Arpaio to stop a practice that constituted a flagrant violation of constitutional rights. Rather than submit to the federal court order, Arpaio acted in open defiance, placing himself above the federal judiciary and the rule of law. Last month, he was properly convicted of criminal contempt for his defiance. He faced a maximum of six months in jail, but all that is now moot thanks to the president’s pardon.

From the Boston Globe, we learn this behavior was nothing new.

In 1997, a few years after Arpaio assumed office, the US Department of Justice sued him after an investigation found rampant mistreatment of inmates in his jails and a pattern of excessive force by the sheriff’s staff. Officers hog-tied inmates and used stun guns on them while they were handcuffed or in restraining chairs. The lawsuit was dismissed in a settlement, but Arpaio’s methods of abuse didn’t change at all.

As a result, many prisoners died at an alarming rate without explanation. According to the Phoenix New Times, taxpayers in Maricopa have paid more than $140 million to litigate and settle countless claims of brutality while Arpaio was sheriff.

By the mid-2000s, Arpaio had found another target to terrorize and criminalize: unauthorized immigrants (much like Trump did during the presidential campaign.) Arpaio became obsessed with enforcing federal immigration law, conducting workplace raids and immigration patrols where his staff stopped people who looked Hispanic and arrested those who were illegally in the country.

This history is well known, both to the populations Arpaio targeted and to the White Supremacists, neo-Nazis and Klan members who supported his behaviors. Trump’s pardon sent a clear message to both groups– especially to the bigots in his base who might have worried about Trump’s continued commitment to their “cause” in the wake of Bannon’s departure from the White House.

This pardon goes well beyond the “dog whistles” and “winks” employed by many Republicans to let bigots know they remain welcome in the Grand Old Party. It is a flat-out endorsement of racism, and I’m sure it comforted Trump’s White Nationalist supporters.

The spectacle of a United States President openly siding with enemies of everything America purports to stand for is nauseating, but even that is not the worst implication of this pardon.

Allow me to explain.

The Bill of Rights protects individual rights against government infringement. When a government agent–that is, someone acting on behalf of the government–violates the constitutional rights of an individual, both that agent and the government are answerable for that infringement. Our legal system punishes people who misuse the power of the state.

This pardon voids that guarantee of accountability. It guts the rule of law that anchors our constitutional system. It is telling government officials who abuse their authority that this President has their back, that they won’t be held to account for their misconduct–so long as their misconduct is consistent with the President’s own “priorities” and interests.

That’s how a constitutional democracy becomes an autocracy.

If this isn’t a constitutional crisis, I don’t know what is.