Tag Archives: Trump

ERA Redux?

A recent editorial in the New York Times suggests that the time for passage of the Equal Rights Amendment–long comatose (actually, I thought it was dead)–may finally be at hand.

The editorial begins with a recognition of the Trump Administration’s negative consequences, especially for women:

Having a sexist in the Oval Office who curries favor with conservative religious groups is having dire consequences. Health workers in developing nations are preparing for a rise in unsafe abortions due to President Trump’s reinstatement of the global gag rulethat prohibits federal funding of groups that provide abortion services or referrals. Here at home, his administration has been hostilenot only to abortion access, but even to birth control.

A full list of the “Trump Effect” would be much longer, of course; it is a mistake to put “women’s issues” in some sort of separate category limited to matters of reproduction and discrimination. Women’s issues are human issues, and vice-versa–the damage this administration is doing to policies ranging from the environment to poverty to international relations affects all genders, just as family planning and child care policies affect men as well as women.

That said, the daily assaults have generated a monumental resistance.

Rage at the election of a man who boasted about grabbing women’s genitals helped set off the #MeToo movement’s reckoning with sexual misconduct. A record number of women are running for office around the country, many of them announcing their candidacies after participating in women’s marches the day after Mr. Trump’s inauguration.

And now, on Mr. Trump’s watch, feminists could reach a goal nearly a century in the making, and that many assumed would never come to pass — ratification of the Equal Rights Amendment to the Constitution. It states: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

What prompts this possibility?  Evidently, the Illinois State Senate recently passed a bill to ratify the E.R.A.  If the Illinois House passes the same legislation (supporters are cautiously optimistic) — then Illinois will become the 37th state to ratify the amendment.

Just one additional state would be needed, and the long-languishing amendment would become part of the Constitution. Maybe.

Thirty-five states had signed on by 1977, ahead of the 1982 deadline established by Congress. Extensive–one might say hysterical– conservative opposition then arose, preventing further ratification. Virtually nothing happened after that, until Nevada suddenly ratified it last year.

There are some questions about what will happen if a 38th state ratifies the amendment, given that it would miss the deadline Congress set by at least 36 years, and five states have even voted to rescind their ratifications. But E.R.A. supporters and some legal experts make a plausible case that the amendment should still be recognized, pointing to, among other things, the 27th Amendment, on congressional pay, which was ratified more than 200 years after its passage by Congress, although no deadline had been set.

If the ERA were to be ratified, I’m not sure what it would do. As the editorial notes, there is a substantial body of 14th Amendment jurisprudence that protects the equal rights of women.

The fight against the E.R.A. is being led by groups on the religious right like the Illinois Family Institute, using arguments that are the ideological heirs of those so vociferously expressed by Phyllis Schlafly, whose group Stop E.R.A. — the first word standing for “Stop Taking Our Privileges” — which became the Eagle Forum, prevented the E.R.A.’s ratification at the time.

Those arguments include fearmongering about how coed locker rooms could become standard and alimony for women outlawed — arguments that are hard to take seriously but that nonetheless helped Mrs. Schlafly to very effectively convince Americans, including many women, that the E.R.A. was bad news. (Mrs. Schlafly, who died in 2016, would no doubt be appalled that her home state, Illinois, could now play such a pivotal role in ratification.)

Another conservative talking point is that the E.R.A. would lead to abortion restrictions being struck down. That outcome is not at all certain, but it would help many women. (For obvious reasons, the anti-E.R.A. crowd already had to slink away from an argument that the amendment would lead to legalizing same-sex marriage.)

Do we still need the ERA? Case law can be overturned; a constitutional amendment cannot–at least, not easily. Ratification would add an extra layer of protection against discrimination for both men and women . Given the appalling people that are being placed on the federal bench by Trump and the GOP, that’s no small matter. And of course, as the editorial pointed out, “This could become especially important if Mr. Trump gets to pick additional conservative Supreme Court justices.”

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The Trust Problem

Listening to the news this weekend, it occurred to me that my standard lecture on Marbury v. Madison highlights why Trump is unlikely to get a deal with North Korea. (Bear with me here.)

As most readers of this blog know, Marbury  established that the Supreme Court is the final arbiter of constitutionality. The case arose because President Adams–in the last hours of his term–nominated a number of people for judgeships (packing the courts ahead of Jefferson’s assumption of office). In those days, these “commissions” had to be delivered to the appointee to take effect, and due to the timing, Marbury didn’t receive his. Jefferson refused to honor his predecessor’s appointment by having his Secretary of State, James Madison, deliver the commission.

Justice Marshall, who authored the opinion, was between the proverbial rock and hard place. If Jefferson didn’t have to honor the commitments of his predecessor, the new government would be weakened; if he ordered Jefferson to deliver the commission, and Jefferson refused (which was likely), the Court’s authority would be permanently compromised.

I’ve always thought Marshall’s solution was on par with that of Solomon and the baby. He ruled that a commission properly made must be delivered–but he also found the law under which the appointment had been made constitutionally defective, and the commission null and void. Jefferson (I’m sure grudgingly) acquiesced to the decision–including the proposition that the Court was the final voice on constitutionality– since he got the practical result he’d wanted.

When we discuss this case in class, I usually pose a scenario: I have a student assume he owns a car-towing business. He just got a contract with the city, and in order to service it, hired two new people and bought a new truck. Business is great. Then a new Mayor is elected, and refuses to honor the contract.

I ask the student “Would you ever do business with the city again?” The answer is always no. (Sometimes, “hell no!”)

Which brings me to Trump and Korea. And Iran. And the Paris Accords.

At the same time Trump is bragging about his deal-making prowess and suggesting that only he can get a binding agreement with North Korea, he is hell-bent on rejecting the United States’ “binding” commitments to Iran. He has previously refused to honor his predecessor’s decision to join the Paris Accords. (For purposes of this discussion, I will omit mention of the numerous “deals” he reneged on as a private citizen, and the myriad times he stiffed people to whom he owed money. I will also forego discussion of the times the U.S. has bailed on its promises in the past.)

If I were Kim Jong Un, I wouldn’t trust the word of a President who is currently demonstrating that the nation’s word is worthless.

Kim’s hair may be as silly as Trump’s, but I get the impression that he is a whole lot smarter than the un-self-aware ignoramus who currently shames all sentient citizens. Trump is likely to get rolled–and unlikely to realize it.

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This Isn’t Making Us Safe

The Senate has now confirmed Mike Pompeo as Secretary of State, despite deeply disturbing reports of his longstanding Islamophobia. Nothing like having a man with a well-deserved reputation for decidedly undiplomatic bigotry as the country’s chief diplomat. I’m sure his disdain for the world’s largest religion will serve him especially well in negotiations in the Middle East…

At least Pompeo understands–or seems to understand–that religious hatred is not generally considered a positive qualification for the job at hand, and he has downplayed it.

Not so John Bolton. Trump’s choice of a National Security Advisor is an even more obvious mental case than the current occupant of the Oval Office. His disdain for the United Nations, his preference for war over diplomacy (and the short fuse that impels him to favor military action at the drop of anyone’s hat) are well known. Less well known is his fixation with–and hatred of– Islam.

Dispatches from the Culture Wars has the story:

NBC News has an article about the Gatestone Institute, headed until he took the job as National Security Adviser by John Bolton for the last four years. Gatestone is one of the lesser-known but best-funded of a web of Islamophobic groups that push white supremacist rhetoric about how Muslims are going to destroy white European hegemony through immigration.

The Gatestone Institute is a New York-based “advocacy group.” It issues warnings about the looming “jihadist takeover” of Europe, which will lead to a “Great White Death.” The post quotes NBC News:

The group has published numerous stories and headlines on its website with similar themes. “Germany Confiscating Homes to Use for Migrants,” warned one from May 2017, about a single apartment rental property in Hamburg that had gone into temporary trusteeship. Another from February 2015 claimed the immigrants, for instance Somalis, in Sweden were turning that country into the “Rape Capital of the West.”…

Some of the group’s work was widely distributed, including a claim about Muslim-controlled “no-go zones” in France that Texas Sen. Ted Cruz cited in an op-ed article during the 2016 Republican presidential primary campaign.

Gatestone’s president, Sears Roebuck heiress Nina Rosenwald, said in an email that Bolton was not involved in any of the articles and that Gatestone has no knowledge of Russian trolls having promoted its work.

Rosenwald emailed numerous links to support Gatestone’s claims, including a number in French and German. One entry flagged as documenting “warring Muslim gangs” in Marseille, France, when translated into English, says only that the city had deployed specialized police officers to a high-crime area, with no mention of warring Muslims.

Speaking of disinformation and dishonesty, Bolton wrote the foreword to a book by Pam Geller, who co-chairs an equally disreputable White Supremacist group with Robert Spencer, Stop the Islamization of America. Geller has been described by the Southern Poverty Law Center as “one of the most flamboyant anti-Muslim activists in the United States.” She routinely bashes Islam and Muslims on her blog (titled “Atlas Shrugs”), and is a regular contributor to Breitbart.

Bolton and Pompeo: Trump’s “best people”–working hard to make the world safe for White Christians.

Forgive me if I don’t feel very secure.

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Everything You Ever Wanted To Know About Privilege

Caveat: This post won’t address recent debates over the nature of White privilege or Male privilege. It’s focused instead upon two longstanding legal doctrines: Executive Privilege and Attorney-Client Privilege, both of which are currently relevant to the prospects of the Trump administration.

I am indebted for this discussion to my colleague (and former co-author) David Schultz, who teaches both law and public policy at Hamline University and the University of Minnesota Law School. David recently used his blog to address those issues. As he introduces the topic,

The limits of two privileges–executive and attorney/client–may determine the fate and future of the Trump presidency.  But if Donald Trump and his attorney Michael Cohen think that they can stand on the absolute nature of these two privileges as final fire walls that prevent prosecutors and attorneys from gaining access to potentially incriminating evidence, the law is clearly against them.

The way in which Executive Privilege is most likely to be asserted would be an effort by Trump to quash subpoenas issued by the Special Prosecutor.  The Supreme Court considered a similar claim in U.S. v. Nixon, and that precedent isn’t helpful to Trump. (The Nixon case raised the issue whether a president had to comply with subpoenas from a special prosecutor; at that time, the object was the infamous tapes.)

Nixon asserted executive privilege, which he claimed was absolute. The Court rejected the claim,  ruling that the Privilege “cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

Of course, it is the attorney-client privilege that Trump and his supporters insist was violated in the  raids on Cohen’s office, home and hotel room. However, as David writes,

Similarly, Trump and the White House might seek to invoke attorney/client privilege as a means of protecting some conversations he had either with White House Counsel or his personal attorney Michael Cohen.  Attorney/client privilege protects communication made between privileged persons in confidence for the purposes of obtaining or providing legal assistance for the client.  As the Court said in cases such as Upjohn v. United States,449 U.S. 383 (1981), this privilege encourages clients to talk frankly with their attorneys, allowing the latter to obtain the information needed to provide appropriate legal advice.  Clients would be hesitant to seek legal advice if they generally knew their conversations would not be confidential.

A well-known exception to attorney/client privilege is the crime-fraud exception.   Communications between lawyers who collude with their clients to break the law are not protected.  In this case,  the government evidently gave the court evidence sufficient to support an allegation that the crime-fraud exception applied. (There was also evidence that Cohen rarely acted as a lawyer–that he did little or no legal work, but was actually a “fixer” and business partner for Trump and occasionally others.) The mere fact that a business partner –or a partner in crime–has a law degree isn’t enough to privilege the communications.

As David concludes,

Finally, there is another privilege that Trump may invoke–the right of a president not to be  burdened by civil law suits in office because actions such as Clinton v. Jones, 520 U.S. 681 (1997).  Here, President Clinton was facing a sexual harassment suit by Paula Jones arising out of his actions as governor of Arkansas.  He argued that the civil case against him should not proceed because it would impede his duties as president.  In effect, separation of powers gave the presidency was a temporary immunity or privilege against civil lawsuits.  The Court against rejected this claim, asserting that the presidency did not provide the type of immunity Clinton asserted.

Collectively, Nixon, Zolin, and Jones stand for the proposition that presidents are not above the law.  They cannot invoke executive or attorney-client privilege to hide from criminal or civil liability.  These privileges are not absolute and at some point–which appears now–Trump and his attorney are confronting this reality, and the law will win.

It can’t happen soon enough….

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These Are The People Running Our Country..

This is truly terrifying.

Ed Brayton at Dispatches from the Culture Wars reports on one of those “best people” Trump promised us. This time it’s a communications person in the Department of Health and Human Services.

As a fringe right-wing political commentator, Ximena Barreto claimed that “African-Americans are way more racist than white people,” labeled Islam “a fucking cult” that has “no place” in the United States, pushed the false Pizzagate conspiracy theory, and attacked the “retarded” 2017 Women’s March. In December, she became a deputy communications director at the Department of Health and Human Services (HHS)…

Brayton buttresses this description with specifics of the time, place and rhetoric employed. Click through to see the rest, but here’s a taste:

During her November 30, 2016, Periscope, Barreto said that Islam advocates for “killing other people and abusing women; that’s not a religion, that’s a fucking cult. Like, I’m serious. Like, that’s not religion.” She also said during a June 12 video that Islam is “just a cult. All the practices are cult-like, all that they do.”

During a December 4, 2016, Periscope video, she wondered aloud whether there are members of the Muslim Brotherhood in the U.S. government — a common conspiracy theory among anti-Muslim right-wing media. After someone asked if there’s a Muslim Brotherhood plan in the United States, she replied: “Well, how many of them are in the government already, you know? Like in Congress?”

In a May 25 post on the now-defunct website Borderland Alternative Media, she suggested that practicing Islam should not be allowed in the United States.

Even if her appalling bigotries weren’t disqualifying, her obvious ignorance should have been.
As disquieting as it is to know that these are the sorts of people being hired by our federal government agencies, the fact that so many judicial nominees are only marginally better is far more terrifying. Employees can be replaced; judges are lifetime.
Even the extremely conservative Neil Gorsuch answered that question without equivocation during his confirmation hearing last March. Gorsuch called Brown a “seminal decision that got the original understanding of the 14th Amendment right.” He added that Plessy was a “dark, dark stain” on the Supreme Court’s history.

For 10 minutes in December, the public was agog at the spectacle of Sen. John Kennedy of Louisiana, in his grits ’n’ biscuits twang, shredding a Trump judicial pickto ribbons over his lack of courtroom experience. Kennedy’s evisceration of federal district court nominee Matthew Spencer Petersen was a good show, as shows go, serving to highlight the ways in which some of Trump’s judicial selections were unprepared, entitled, and rushed through the vetting process. Petersen withdrew his nominationnot long after video of his abject performance went viral. The White House also pulled backtwo nominees: Jeff Mateer, who has referred to transgender children as a part of “Satan’s plan,” and36-year-old Brett Talley, who has never tried a case and once defended the “original KKK.”

These nominees are not jokes, and they are not cartoonish bumblers. They are highly effective and respected thinkers with agendas not unlike that of Trump’s Supreme Court nominee Neil Gorsuch. They will create a judicial branch that is hostile to women’s rights, workers’ rights, voting rights, LGBTQ protections, and the environment. And they will do so capably and under the radar. We giggle at the Trump judges at our peril.
I’m not giggling. I’m drinking.
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