Tag Archives: rule of law

Assaulting Democracy

The warning signs are everywhere.

Governing Magazine has added to the evidence that America is losing even the pretense of democracy.

In the first several years after the Affordable Care Act (ACA) helped states make more low-income people eligible for Medicaid, it was only Democratic-led states that took the federal government up on its offer. Republicans have since warmed to the idea — but only on their own terms, and sometimes even if it means going against voters’ wishes…..

While some Republicans in Georgia, Oklahoma and Wyoming are exploring the possibility of Medicaid expansion in their states, Idaho and Utah are undoing ballot measures that voters passed in November to expand Medicaid.

In Utah, the Republican governor responded to the success of a ballot initiative expanding Medicaid by signing a bill that would only cover people earning up to the federal poverty line; it would also cap enrollment if costs exceed what’s expected.

But the terms of the ballot measure, which passed with 53 percent of the vote, were to expand Medicaid eligibility to people earning up to 138 percent of the federal poverty line.

Utah has to get federal approval of this law, and similar measures were not approved during the Obama administration. The Trump Administration, of course, is hostile to pretty much everything the federal government does, so it might very well allow what is a clear repudiation of the will of the voters in Utah.

It isn’t only Utah.

Idaho is also eyeing a rollback of its citizen-led Medicaid expansion ballot measure. The initiative won handily, with 61 percent of the vote….But legislation to void the initiative is currently making its way through the Idaho statehouse.

And many of you will recall that in 2016, Maine voters approved Medicaid expansion, but the state’s certifiable nut-case then-governor, Paul LePage, prevented it from taking effect.

Whatever one’s position on Medicaid expansion, these are truly breathtaking examples of legislative and administrative chutzpah. The citizens of these states voted on an issue before them; in essence, they gave instructions to the people who are presumably in office to represent them. And those people simply ignored them.

This is not unlike Trump’s decision to declare an “emergency” that would allow him to defy a Congressional vote. Even if a member of Congress believes the wall should be built, he or she should be appalled by a Presidential action that strikes at the very heart of the Constitution’s separation of powers. It ignores as irrelevant the constitutional provision that vests decisions about spending in Congress, a provision that–before now–has constrained lawmakers and administrators alike.

Congress said no. That should have been the end of it. The President’s “emergency” is not only bogus, it ignores the clear division of authority mandated by the nation’s charter.

Yet every single Indiana Republican Representative voted against the House Resolution to reverse that dangerous attack on a fundamental element of American governance, placing the interests of their political party above both the good of the country and fidelity to their oaths of office.

Without the rule of law–without lawmakers and public officials who are willing to accept the decisions of voters whether they like those decisions or not; without lawmakers who are willing to insist upon compliance with the Constitution even when it is their party that is breaking the rules–we don’t have a democracy or a republic or even a legitimate government.

We have a banana republic.

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Reflections on Kavanaugh And The Rule of Law

I cite to a lot of publications, but I’ve not previously quoted (or, let’s be honest, read)  America: The Jesuit Review of Faith & Culture. That said, I am in full agreement with the article in which that journal withdrew its endorsement of Brett Kavanaugh.

But even if the credibility of the allegation has not been established beyond a reasonable doubt and even if further investigation is warranted to determine its validity or clear Judge Kavanaugh’s name, we recognize that this nomination is no longer in the best interests of the country. While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn.

Congress and the Administrative Branch are broken and dysfunctional. Brett Kavanaugh’s nomination is an assault on what remains of the legitimacy of the judicial branch. Together with the shameful refusal to grant Merrick Garland even the courtesy of a hearing, it represents a surrender to toxic partisanship and an acknowledgment that we are in a virtual civil war.

About those “hearings”….

Many years ago, when I was active in Republican politics, I was asked whether I would consider being a candidate for a local judicial position. I explained that I lacked a judicial temperament—I tend to be an advocate, and advocacy in my view (then and now) is inconsistent with the judicial function.

We lawyers talk a lot about “judicial temperament,” because it matters. We The People are entitled to have our disputes adjudicated by sober, thoughtful people who can put aside their own prejudices and emotions, and fairly weigh the relevant facts.

The Kavanaugh hearing was not a trial. It was a job interview–his opportunity to demonstrate that he has the intellectual capacity, maturity and judicial temperament appropriate to a judicial position.

He failed.

Ignore his refusal to submit to an FBI investigation, or to a polygraph. Ignore his highly partisan past behavior. Ignore the committee’s refusal to provide over 90% of his work product for the Bush Administration, or to call the people who were identified as witnesses to Dr. Ford’s assault. Ignore the fact that there is irrefutable evidence that Judge Kavanaugh lied about his history of drinking to excess.

Just focus on his demeanor. And ask yourself if you would want this hostile, petulant, entitled man to rule on a case involving your Constitutional rights.

There was a reason the nation’s Founders created an independent judiciary. They reasoned that removing judges from the political process, from the need to respond to the “passions of the majority,” would allow them to rule dispassionately on the matters before them. Their judgments wouldn’t always be correct, but they would be rendered in good faith—based upon their reading of the law and facts, and not their personal re-election prospects.

When our elected representatives are asked to “advise and consent” to a lifetime judicial nomination, they need to recognize the difference between a conservative or liberal judicial philosophy and simple partisanship. We should be wary of a jurist who approaches the Constitution without a well-developed belief in his or her proper interpretive role, and we can agree with that philosophy or not, but disagreement does not disqualify the nominee.

Partisanship is another matter entirely. A judge who is committed to the fortunes of a political party, who will approach the issues from the perspective of a “team player,” poses a clear danger to the rule of law, and undermines respect for the judicial process. Kavanaugh’s entire history marks him as a highly intelligent partisan hack.

There is a reason the American Bar Association called for an FBI investigation and a delay in the confirmation vote. There’s also a reason the Republicans would have ignored it–along with the huge public backlash to the conduct of that farcical “hearing”– but for the position taken by Senator Flake.

Kavanaugh may yet be seated on the highest Court in the land.

These are really dark, dark days for the American Idea and the rule of law.

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Proving Woodward’s Point

As I said yesterday, anyone who has watched this deeply dysfunctional President has come to the same conclusions Woodward attributes to Trump’s staff. But thanks to the very low levels of civic literacy in this country, it may not be apparent to everyone how profoundly his proposed actions violate the most basic of our constitutional premises.

A couple of examples from the Washington Post:

President Trump has long derided the mainstream media as the “enemy of the people” and lashed out at NFL players for kneeling during the national anthem. On Tuesday, he took his attacks on free speech one step further, suggesting in an interview with a conservative news site that the act of protesting should be illegal.

Trump made the remarks in an Oval Office interview with the Daily Caller hours after his Supreme Court nominee, Brett M. Kavanaugh, was greeted by protests on the first day of his confirmation hearings on Capitol Hill.

“I don’t know why they don’t take care of a situation like that,” Trump said. “I think it’s embarrassing for the country to allow protesters. You don’t even know what side the protesters are on.”

I rather doubt that the Daily Caller’s reporter asked the appropriate question: Are you aware that the First Amendment to the Constitution specifically protects the ability of citizens to “petition their government for redress of grievances?” (The Daily Caller is a  website founded by conservative pundit Tucker Carlson and Neil Patel, former adviser to former Vice President Dick Cheney. Hence my assumption the reporter didn’t confront the President.)

It doesn’t really matter. Since Trump has given exactly zero evidence of ever having encountered the Constitution–let alone understanding it–I’m sure a reference to the First Amendment would have fallen on deaf ears.

In another Post column, David Von Drehle addressed the President’s utter contempt for the rule of law.

Here’s a question I never expected to ask:

Should law enforcement officials ignore crimes committed by their friends and associates?

I grew up thinking the answer was a simple no. The figure of Justice, with her scales in one hand and her sword in the other, wears a blindfold to symbolize her impartiality. Carved in stone over the doors of the Supreme Court are the words: Equal Justice Under Law.

As I got older and saw a few things, I came to understand that justice, as meted out by humans, is imperfect. Yet the principle of the matter — the goal for which we should aim and the standard by which we should measure — remains the same. Impartiality. Equality. Fairness.

So why am I asking?

On Labor Day, the president of the United States used Twitter to express precisely the opposite idea.

Von Drehle was referring to Trump’s angry eruption at the indictment of “two very popular Republican Congressmen.” He clearly believes that the role of the Justice Department is political, that since both he and Sessions are Republican, the department should protect Republican wrongdoing.

I don’t know what’s worse–that Trump would have such an uniformed view of what “law” means, or that he was willing to tweet his ignorance for the whole world to see. As Von Drehle concluded,

Nineteenth-century orator Robert Green Ingersoll once wrote, “Nothing discloses real character like the use of power.” In his pity for Paul Manafort, convicted tax cheat; in his hatred for truth-telling “rats” and “flippers”; and now in his assertion that the law should exempt his political allies, Donald J. Trump is disclosing his.

Sixty percent of us, plus or minus, noticed.

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Another Reason To Reject Kavanaugh

Much, if not most of the opposition to Brett Kavanaugh, revolves around his obvious antagonism to Roe v. Wade. 

Most people’s arguments for and against Roe center on abortion. But that really isn’t what the ruling protects. The issue isn’t whether or not a woman should terminate a pregnancy–it is about who gets to make that decision. Judges who want to overrule Roe believe that government–not the pregnant woman– should have that authority, that the personal autonomy protected by the Bill of Rights can and should be limited when a majority of legislators see fit to substitute their judgment for that of the individual.

The implications of that position are what keep me up at night.

If you look carefully at the legal and philosophical arguments advanced by opponents of Roe (rather than the “pro-life” demonstrators who see it as simply a question of abortion, which they oppose) you will find a disquieting thread of authoritarianism. These are the judges and organizations who consistently favor the exercise of power–government over citizens, major corporations over consumers, the status quo over potential disruption.

That tendency to weigh in on the side of established authority is subject to one notable  caveat: authority is only right when it is “their guys” who are wielding authority. (They are like the Christian theocrats who are critical of the Taliban, not because individuals should have the right to form and hold their own beliefs, but because the Taliban is imposing the “wrong” beliefs.)

People who know him have remarked on Kavanaugh’s extreme partisanship. As his record has emerged, his strong bias for authority is becoming clearer.

(CNN)Judge Brett Kavanaugh two years ago expressed his desire to overturn a three-decade-old Supreme Court ruling upholding the constitutionality of an independent counsel, a comment bound to get renewed scrutiny in his confirmation proceedings to sit on the high court.

Speaking to a conservative group in 2016, Kavanaugh bluntly said he wanted to “put the final nail”in a 1988 Supreme Court ruling. That decision, known as Morrison v. Olson, upheld the constitutionality of provisions creating an independent counsel under the 1978 Ethics in Government Act — the same statute under which Ken Starr, for whom Kavanaugh worked, investigated President Bill Clinton. The law expired in 1999, when it was replaced by the more modest Justice Department regulation that governs special counsels like Robert Mueller.
Kavanaugh has often embraced the “unitary executive theory” beloved by Dick Cheney. An embrace of that theory by the Court would mean that an independent prosecutor–who is structurally part of the Executive Branch–would always serve only at the “pleasure of the President.”

U.S. Supreme Court nominee Brett Kavanaugh once questioned the correctness of the 1974 high court decision that forced then-President Richard Nixon to turn over secret White House tape recordings and led to his resignation…..The 1974 United States v. Nixon ruling unanimously rejected the president’s claim that executive privilege protected him from having to release the tapes to a special prosecutor…

Kavanaugh said the president, not the attorney general, is the country’s “chief law enforcement officer.”

These views didn’t prevent him from relatively enthusiastic participation as a lawyer working with Ken Starr during Starr’s investigation of President Clinton. But then, Clinton was a Democrat.

This preference for an expansive view of Presidential power ( when Republicans are exercising that power) raises some fairly serious concerns. If government has the authority to overrule intensely private decisions about procreation, and if the President’s authority over that government cannot be subjected to independent investigation, what other decisions is the President free to impose on the citizenry? What happens to other important checks and balances? The rule of law?

Yesterday, the New York Times editorial board highlighted several of Kavanaugh’s previous rulings in an editorial warning that his confirmation would hamper government’s ability to protect citizens against corporate overreach and would further expand the gap between rich and poor.

In 2012, Judge Kavanaugh wrote an appeals court opinion striking down an Environmental Protection Agency rule that required upwind states to reduce power plant emissions that cause smog and soot pollution in downwind states, a decision that was later struck down by a 6-to-2 majority of the Supreme Court. And in 2016, he wrote an opinion that said the leadership structure of the Consumer Financial Protection Bureau was unconstitutional because Congress decided that the president could only fire its director for cause. The full appeals court reversed that portion of his decision in January.

The editorial had much more–and the more we learn, the worse Kavanaugh looks.

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The Favoritism Regime

As I often try to explain to students, there is an important difference between rights and privileges. The essential element of the rule of law–the characteristic that distinguishes it from the exercise of power–is that the same rules apply to everyone. If everyone doesn’t have rights, no one does. Some people may have privileges, but that isn’t the same thing.

The deal is, the person engaging in free speech who is saying something with which you disagree has the same right to voice his opinion as the person with whom you agree. If we don’t all play by the same rules, if some people have more “rights” than others, no one really has rights. They have privileges that can be withdrawn if they offend or oppose those in power.

The rule of law is fundamental to a constitutional government. It is glaringly obvious that Donald Trump does not understand either its definition or its importance. It is equally obvious that he wouldn’t respect it if he did. Like most autocrats and would-be autocrats, he is all about self-aggrandizement, the exercise of power and the ability to reward his friends and punish his enemies.

Trump’s lack of comprehension of, or respect for, the rule of law is one of the many reasons he is so unfit to hold public office.

What triggered this rant was an article about Trump’s decision to impose tariffs on steel and aluminum–a decision he has evidently been reconsidering in recent days. (When your policy pronouncements emerge from impetuous impulses rather than considered analyses, they do tend to change on a day-to-day basis…) The article described the proposed tariffs and their potential consequences, and reported on the number of  U.S. companies that were scrambling to win exemptions to them.

As of the time of the article, the Commerce Department had evidently received 8,200 exemption requests.

Let’s deconstruct this.

Assume you owned a company that relied upon imported metal to manufacture your widgets. The government moved to impose tariffs, which would increase your costs and make your widgets less competitive with the widgets manufactured in other countries. Assume further that you applied for an exemption from the new rule, based upon some tenuous argument or plea of hardship. Wouldn’t you be likely to do whatever you could to curry favor with the administration dispensing those exemptions? You’d almost certainly dig deep to make a political contribution.

“Pay to play” is, unfortunately, nothing new in American politics. Engineers and others who bid on government projects know that a history of political donations may not be enough to get them the contract, but is necessary to ensure that their bid is one that will at least be considered.

That said, unsuccessful bidders who believe that a contract has been awarded to a company that didn’t meet the statutory criteria–a donor whose bid was not “lowest and best”–can sue. And win. It happens more often than you might think.

Of course, the ability to sue and have your complaint judged fairly requires that the country’s judicial system be both impartial and competent. That’s one reason this administration’s rush to fill judicial vacancies with political cronies is so pernicious.

In places where government agencies can confer benefits at their discretion–routinely the case in autocratic regimes–and there is no legal recourse, corruption is widespread and inevitable. (See: Putin’s Russia) Quid pro quo replaces rule of law.

That’s the path America is on right now. If the GOP enablers in Congress survive the midterm elections, the prospects for turning things around will be very, very dim.

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