Tag Archives: rule of law

The Tariff Decision

The Supreme Court’s decision striking down Trump’s illegal tariffs was welcome, but hardly unexpected–and as Josh Marshall has reminded us at Talking Points Memo, hardly a sign that the Court has changed its corrupt ways.

For one thing, the tariffs were so transparently illegal it would have been incredibly difficult to save them (although three of the Court’s most incorrigible members tried.) As Marshall noted, there simply was no ambiguity in the law in question. He is absolutely correct when he says the decision wasn’t some big win. Granted, it’s certainly better to prevent a rogue president from continuing immensely harmful and blatantly illegal acts than permitting him to continue them. But it would be a mistake to view this decision as evidence that the Court is abandoning its substitution of political preferences for legal analyses.

This is a case where the legal merits of the President’s action were just too transparently bogus even for this Court to manage and — critically — his actions and the theories undergirding his claims to the power were, for the Corrupt majority, inconvenient. The architect of the current Court — the Federalist Society’s Leonard Leo — was behind the litigation that undid the tariffs. That tells you all you need to know. In this case Trump’s claim to power was neither in the interests of the Republican Party — the Court’s chief jurisprudential interest — nor any of their anti-constitutional doctrines. So of course they tossed it out. This may sound ungenerous. It’s simple reality.

Actually–as Marshall also points out– the decision can be viewed as an indictment of the Court, which delayed issuing its decision for almost a year, and allowed the tariffs to upend whole sectors of the U.S. and global economies during that time. The Court allowed this president to exercise clearly illegal powers for almost a year, and it’s hard to disagree when Marshall says that “If the Constitution allows untrammeled and dictatorial powers for almost one year, massive dictator mulligans, then there is no Constitution.”

Part of the delay of this ruling is the fact that most major corporations were afraid to bring litigation because they didn’t want to go to war with the president. But that’s also an indictment of the Supreme Court’s corruption. Because they made clear early on that there was little, if any, limit they would impose on Trump’s criminality or use of government power to impose retribution on constitutionally protected speech or litigation. So that’s on the Court too. But it’s only part of the equation. The Court also allowed the tariffs to remain in place while the government appealed the appellate decision striking down the tariffs back in August. Let me repeat that: back in August, almost six months ago.

In other words, most of the time in which these illegal tariffs were in effect was because of that needless stay. The logic of the stay was that deference to President’s claim of illegal powers was more important than the harm created by hundreds of billions in unconstitutional taxes being imposed on American citizens. It’s a good example of what law professor Leah Litman — one of the most important voices on the Court’s corruption — earlier this morning called the Court’s corruption via “passivity,” empowering anti-constitutional actions through deciding not to act at all or encouraging endless delays it could easily put a stop to in the interests of the constitutional order.

The word “corruption” is harsh, but deserved.

Consider the Court’s increasing and unprecedented use of the so-called “Shadow Docket” to issue orders untethered to analysis. And that corruption hasn’t only been in service of the Justice’s political ideology. Investigations have uncovered copious evidence that both Alito and Thomas have accepted numerous, undisclosed luxury trips and gifts from billionaire donors with interests in pending court cases. ProPublica has reported on the numerous  gifts Thomas has accepted from Harlan Crow, and on the trips Paul Singer gifted Alito. 

The Separation of Powers prescribed by America’s Constitution requires three branches of government acting with integrity to preserve their separate prerogatives. The crisis we currently face is, in very large part, a result of a corrupt Supreme Court and a Congressional majority composed of cowards and eunuchs, branches that have ceded their constitutional authority to a bloated, lawless and increasingly lunatic executive.

When We the People retrieve our government from the MAGA fascists and neo-Nazis, reform of the Supreme Court should be one of the first orders of business.

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A Summary And A Prescription

In today’s post, I’m citing  two commentaries that describe where we are– and one that outlines what we must do.

Last Monday, Simon Rosenberg’s post at “Hopium Chronicles” included a two-paragraph summary of Trump’s preceding week. I’m quoting both paragraphs in full, because they paint a very clear picture of the time and place we inhabit.

Just in the last few manic days Trump has launched a full out assault on the Fed (see Chairman Powell’s historic video, below). He is threatening to invade Greenland, bomb Iran, struck targets in Syria this weekend, and last night declared himself “Acting President of Venezuela.” He is now fighting with the oil companies over their reluctance to become part of his Venezuelan oil fantasy; threatened the credit card companies with a law that only exists in his mind; sanctioned the killing of Americans by his paramilitaries for dissent; threatened to veto the resumption of the ACA subsidies if passed by the Senate; and with another anemic jobs report on Friday received further confirmation of the failure of his tariffs to deliver for the country, or Republican candidates facing extinction over affordability. The lunatic HHS Secretary is returning America to a pre-modern health era, threatening the lives and health of tens of millions of Americans. Millions of people took to the streets this weekend, many in terrible weather. We are now more than a quarter of the way into the new federal fiscal year without a budget, and the government may run out of money again in 18 days.

Things are getting worse, not better, for Republicans and the country. Trump is threatening the fundamental security alliance that has kept us safe and free for 80 years. He is threatening the integrity of our financial system which has made us the wealthiest nation in history. He has walked away from the UN Charter which has created the basic governing rules for nations for 81 years. He snatched a foreign leader from his palace in the middle of the night, without Congressional approval. In the last few days he openly threatened both the oil companies, and the big banks, two powerful Republican-aligned industries who will be loudly complaining to Thune and Johnson today. Last night he declared himself the “Acting President of Venezuela.” He is encouraging his goons to kill Americans on the streets. His public performances and social media posts suggest he has completely lost his shit and it is time now for the keys to be taken away.

Rosenberg is a Democrat–a hated “progressive.” However, Charlie Sykes, was a rock-ribbed conservative pundit. 

Sykes began his post by sharing an editorial cartoon that’s been making the rounds–ICE agents standing over a fallen Statue of Liberty, polishing their guns and explaining that “She was brandishing a torch.” He then pivoted to discussion of “Judgement at Nuremberg” a film he found relevant to the times in which we find ourselves. He then quoted Joe Klein for the “critical parallel.”

Innocent people are being rounded up in the streets of America now. One was killed last week. Too many of our fellow citizens are okay with this.

But they don’t even have the “Good” Nazis’ excuse: they know it’s happening. They see it on tv every night. Their tolerance for this brutality is making our country, palpably, a place it never was before. It is becoming the sort of country that people used to flee… to come to America.

That’s where we are. The critical question, of course, is: where do we go? What must we do? Rick Wilson–another former Republican (and former GOP strategist) has weighed in on that pivotal question.

To stop the immediate crisis, we must weaponize the very “propositional nature” of America. This involves a tactical veto of civil society: a collective refusal by elected leaders, local governments, businesses, the legal community, and civic and religious leaders to facilitate the “will to power.”

By creating friction in the gears of the state, we transform the grim anxiety of the populace into a functional resistance that protects the remaining guardrails of the Republic until the momentum of ICE can be broken at the ballot box.

Then, Wilson writes, we must create a National Commission on the Rule of Law to document every “butcher’s bill” and ensure that names like Renee Good are never forgotten. That Commission must then pursue the active prosecution of every functionary who used the machinery of the state to crush America–the  “American SS and people like Stephen Miller, Kristi Noem, Greg Bovino, and Tom Homan, and the hundreds of lower-ranking DHS and ICE officials who executed these abuses.”

Wilson is right. We must return to an America in which “the rule of law is not a suggestion, but a binding commitment that carries a price for its betrayal.”

We the People can do that.

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Markets And The Rule Of Law

I talk a lot about the rule of law–mostly in the context of ensuring fair play and civil peace. But as a recent essay by Catherine Rampell reminds us, the rule of law is also essential to the operation of a market economy.

A country that protects property rights; that has free capital markets; that has a stable and predictable regulatory regime; where all citizens are equal before the law; where individuals don’t fear being expropriated by the state without cause; and where private contracts can be enforced regardless of political connections is generally a better place to do business. All these features are among the reasons the United States has long been the richest country on earth. It’s also why we have attracted so much foreign capital.

When property rights aren’t protected and the justice system operates to reward friends and punish enemies, doing business is harder. People don’t have the certainty they need to invest here, or study here, or start businesses here.

Rampell is absolutely correct. Economic experts have long emphasized the importance of the rule of law to market performance. Predictability is particularly significant–it allows businesses to plan, invest and price goods with reasonable certainty that everything won’t go south without warning.

Even more important is the enforcement function. A reliable and impartial legal structure allows confidence that contracts will be enforced in accordance with their terms. When a business owner cannot rely on the courts to enforce agreements and laws mandating fair economic play, like anti-trust, companies end up depending on personal relationships– family networks, political influence, or bribery-based “arrangements”– which are both far less predictable and far less fair. (Can we spell Russia?)

Then there’s the protection that rule of law regimes provide for property rights. Critics of capitalism tend to dismiss the importance of that protection, but it is critical to the operation of the economy. Investment only occurs when ownership is secure–when clear legal title allows business-people to buy, sell, collateralize and insure property. When any property can be arbitrarily seized (either by the state or by powerful actors), capital investment gives way to defensive hoarding.

Numerous economists will also point out that the ability to rely on a fair and impartial legal system lowers transaction costs and makes markets more efficient. Rule of law systems with standardized rules reduce the need for expensive private enforcement, constant renegotiation, or the excessive premiums necessitated by increased risk. As an economist friend once told me, the rule of law obviates the need for private militias, political patrons, or corrupt intermediaries. 

 Bottom line: the rule of law makes markets cheaper to operate, and it should go without saying that lower transaction costs benefit consumers–a lesson we’re re-learning as Trump’s tariffs increase those transaction costs.

One of the most worrisome aspects of the kakistocracy we increasingly inhabit is the steady erosion of genuine market capitalism and its replacement by what is sometimes called corporatism, or crony capitalism. When power replaces the rule of law, markets devolve into corruption, uncertainty, capital flight, and monopoly power.

What defenders of capitalism often misunderstand is that markets can’t operate properly in the absence of regulation. Antitrust law, bankruptcy law, and anti-corruption laws prevent powerful folks and insiders from rigging the marketplace. Sound laws and regulations ensure that investments will flow to firms that are seen as productive, rather than to firms that are politically connected. Crony capitalism suppresses productivity and innovation.

A market economy is not self-sustaining without an adequate rule of law.

I consider myself a capitalist. I’m a fan of market economics, and accordingly, I recognize the importance of the rule of law to the proper operation of those markets. But I also understand that there are functions that markets cannot perform. Economists talk about “market failures” that require government intervention, but the simpler explanation is that, in any society, there are functions that require collective rather than competitive action. 

Government is our mechanism for those collective activities, for providing the physical and social infrastructure within which markets can operate and people can pursue their individual life goals. The rule of law is an essential part of that infrastructure.

The thorny issue that underlies our most important policy debates is identifying which goods should be provided collectively by government and which should be left to the market. (If we’ve learned anything from the failures of “privatization ideology,” it is that things like education and health care are not consumer goods.)

Tomorrow, I’ll consider that fundamental question…

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Losing The Rule Of Law

It isn’t just the loss of due process (yesterday’s lament).

The Bulwark recently published an essay comparing the rule of law to the rule of Trump which is displacing it. You will not be shocked by the article’s conclusion that the two are incompatible. Under the rule of law, for example, certain specified persons are empowered to use force on behalf of the state in specified circumstances against persons engaged in specified activities. The rule of law does authorize state violence, but only under the enumerated circumstances–and other laws restrain government officials from engaging in such activities.

Under the rule of Trump, inevitable conflicts between public safety officials and people with whom they engage become conflicts “between angels and demons.” In Trump’s mind (I use the word “mind” hesitantly), “military police are heroic patriots by virtue of being in his military police.” Criminals are people who anger or cross him, or object to Trump’s will. By definition, they are dangerous insurgents who must be rooted out.

In other words, criminals are whoever Trump says are criminals, including the invented rioters and murderers in his fanciful descriptions of the horrors of life in Blue cities–descriptions so at odds with reality that they confirm his mental derangement.

The New York Times recently interviewed  50 members of the Washington, D.C. legal establishment, men and women who had worked as high-level officials for every president since Ronald Reagan. The group was evenly split between Republicans and Democrats. All of them were appalled.

One former official who served in both Democratic and Republican administrations–including Trump’s first term–was quoted as saying “What’s happening is anathema to everything we’ve ever stood for in the Department of Justice.” There was a near consensus among the officials surveyed “that most of the guardrails inside and outside the Justice Department, which in the past counterbalanced executive power, have all but fallen away.”

The indictment of James Comey, the former F.B.I. director who was charged only after Trump fired the prosecutor who refused to do so and installed a pliant operative in his place, represents a misuse of power that several respondents said they had never expected to see in the United States.

The survey found a “collectively grim state of mind.”

All but one of the respondents rated Trump’s second term as a greater or much greater threat to the rule of law than his first term. They consistently characterized the president’s abuses of power — wielding the law to justify his wishes — as being far worse than they imagined before his re-election.

And every single one of the 50 respondents believe that Trump and his attorney general, Pam Bondi, have used the Justice Department to go after the president’s political and personal enemies and provide favors to his allies.

At the end of his first term. Trump pressured the Justice department to investigate obviously “fact-free” claims. Bill Barr, who was attorney general at the time, had been a close ally of Trump, arguably subverting DOJ independence on Trump’s behalf in several matters. But when Trump pressured him to pursue allegations that Joe Biden had won the 2020 presidential election because of voter fraud, Barr wrote in his memoir that it was an ask too far, and he resigned rather than give in. Other top officials also threatened to resign rather than use the department in a dishonest effort to overturn the election.

Because of the lawyers in the room, the safeguards held. But if such a scenario were to play out in Trump’s second term, the same result is “unthinkable,” said Peter Keisler, who was an acting attorney general under President George W. Bush.“No one in the room now will say no,” said the Justice Department official from Trump’s first term. The lesson Trump drew from his first term, the former official continued, is that the lawyers who talked him out of “bad ideas” were the wrong kind of lawyers. “The president has set it up so that the people who are there are predisposed to be loyalists who will help him do what he wants.”

The dismantling of the rule of law began immediately after Trump assumed office the second time, with his shocking grant of pardons and commutations to the Jan. 6 rioters. It has continued with innumerable other examples, many of which were enumerated in the Times article.

It was significant that all 50 respondents faulted Congress for doing little or nothing to fulfill its role of restraining the president–and a majority also faulted the rogue Supreme Court. When checks and balances no longer check and balance, autocracy flourishes. 

RIP rule of law…..

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L’Etat, Ce Moi

“L’etat, ce moi”–meaning,  “the state, it is me– is a French phrase attributed to King Louis XIV, who probably never said it. Nevertheless, it represents the foundational concept of absolute monarchy, a regime in which the king has total authority over the state. 

I am confident that Donald Trump, the least educated President in history, never encountered the phrase, but its meaning clearly animates his conception of the Presidency. Law–in Trump’s limited and inaccurate view–is whatever he says it is. It certainly doesn’t exist as a separate framework.

In recent articles, the New York Times has outlined how this wholly unAmerican approach to the Presidency is undermining the rule of law, as our would-be monarch decides what rules should be ignored in the corrupt interests of his pocketbook and those of his plutocratic cohorts. 

 The most vicious and far-reaching attempts to thwart the laws of the land have come as part of Trump’s racist efforts to root out D.E.I. and other measures aiming to ameliorate discrimination.  Trump has ordered government offices to simply stop enforcing numerous civil rights provisions. According to a Times  newsletter (link unavailable), the Labor Department will no longer investigate employers who allegedly underpaid women or awarded promotions based on race. The administration has  abandoned hundreds of pending cases under the fair housing law–abandoning efforts to prosecute landlords who keep out gay people or owners who refuse to sell to people of a different faith. Trump has also instructed the government to nix the “disparate-impact” test, which looked at whether minority groups were affected differently by criminal background checks, credit checks, zoning regulations and other facially neutral laws.

And recognizing that direct orders are not the only way to stymie the enforcement of laws on the books, Trump has slashed budgets and head counts, which has a similar effect. As the Times accurately noted, laws work only if people are there to enforce them. So the EPA has been eviscerated under this administration; its ability to enforce environmental measures crippled. Employment at the IRS has been cut, severely limiting the ability of that agency to pursue tax cheats (like the President himself). Etc.

Mainstream media sources routinely describe measures taken by the Trump administration as “authoritarian.” That is, of course, accurate–but it tends to obscure the effects of the measures described above (and the many similar ones)–tends to make the very real harms seem somewhat abstract. (Theoretically, after all, an authoritarian leader could impose measures that advanced the public good–authoritarianism is the process, not the consequence.)

The same problem arises when pundits and bloggers like yours truly bemoan the daily assaults on the rule of law. Rule of law, too, is an abstraction. What isn’t abstract is when ICE thugs ignore the constitutional rights of those they are intimidating and snatching off the streets, or when the administration refuses to comply with the terms of its prior research grants.

A significant body of research confirms that a troubling percentage of the American public actually wants an authoritarian government–a ruler who relieves them of the burden of exercising thoughtful and responsible citizenship. Whether that desire to be ruled rather than governed is a result of inadequate civic education or personal intellectual/emotional deficit is unknown; it is also unknown whether those who prefer a monarchy to a democracy approve of the way the current Mad King and his Congressional enablers/courtiers are conducting–or refusing to conduct– the affairs of state. 

That Times newsletter did readers a favor by discarding the abstractions and pointing out the specifics of an authoritarianism that manifests its contempt for fundamental fairness and the rule of law every day.

MAGA cult members are likely to be surprised when their chosen authoritarian’s “policies” further enrich the plutocrats while tanking the economy, instituting stagflation, closing rural hospitals and throwing grandma off Medicaid. That’s the problem with allowing someone–anyone, but especially this bloated, ignorant and embarrassing buffoon–to believe that he is “the state.”

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