Category Archives: Constitution

Trumping The Constitution

I’m not one of those old people who is always looking back in time through rose-colored glasses–“remembering” that families were closer, people were friendlier, children were seen and not heard, etc. etc. Those memories are highly suspect, if not deliberately dishonest.

That said, I do miss the Republican Party of my younger days. It’s true that it always had a right-wing fringe, but before that fringe took control and ran reasonable people out, the GOP I worked for was filled with admirable, public-spirited men and women.

I thought about those “good old days” when I read that a group of former GOP lawmakers had written a letter to Republicans in Congress, urging them to void Trump’s “Emergency” declaration.

A group of 23 former Republican lawmakers, including former Defense Secretary under the Obama administration Chuck Hagel, signed a letter urging Republicans in Congress to pass a joint resolution that would terminate President Trump’s emergency declaration over the border wall.

In an open letter to GOPers, the former lawmakers argued that Congress should not allow the President to “circumvent congressional authority.” They also questioned how willing lawmakers are to undermine the Constitution.

“How much are you willing to undermine both the Constitution and the Congress in order to advance a policy outcome that by all other legitimate means is not achievable?” they wrote.

One of the signatories to that letter was former Indiana Senator Dick Lugar.

The contrast between the Republican Party of Lugar and Hudnut and the party of McConnell and Trump is devastating. The Republicans who currently “serve” Indiana in the House and Senate (please note quotation marks around the word serve) are a sorry group of wanna-be’s, terrified that they will run afoul of the party’s rabid, racist base if they confront a President they know to be corrupt, ignorant and dangerously incompetent.

The letter from party elders was blunt: support for Trump’s “Emergency” is an attack on the Constitution. Failure to oppose it is failure to serve the national interest. And yet, every single Republican member of Indiana’s House delegation caved. Faced with a choice between serving their country and falling into line for Trump, they chose Trump.

Emergency powers are intended to allow Presidents to act when there is not time for Congress to do so. If the President can overrule Congress when it has acted, simply by declaring an emergency, there is no longer a separation of powers. Congress is neutered.

The lawyers in Indiana’s delegation, especially, fully understood the import of their votes. (And yes, Susan Brooks, we are looking at you.)

In an eloquent essay in the Atlantic, Eliot Cohen described these Republicans.

Talk to them privately, and they will confess that there is no emergency at the southern border—there is a problem, to be sure, but one whose seriousness has actually diminished over time. They know that the congressional leadership had the votes to build walls there for the first two years of the administration but did not manage it. They know, for that matter, that border security involves much more than walls. They know that the president is invoking emergency powers as an electoral ploy, and because he is impatient.

They know, in their timid breasts, that they would have howled with indignation if Barack Obama had declared a national emergency in such a circumstance. As they stare at their coffee cup at breakfast, the thought occurs to them that a future left-wing president could make dangerous use of these same powers—because Speaker Nancy Pelosi rubbed that fact in their face. Some of the brighter ones might even realize that emergency powers are a favored tool of authoritarians everywhere.

 But they are afraid. They are afraid of being primaried. They are afraid of being called out by the bully whom they secretly despise but to whom they pledge public fealty. They are afraid of having to find another occupation than serving in elective office. And the most conceited of the lot—and there are quite a few of those, perhaps more in the Senate than in the House—think that it would be a tragedy if the country no longer had their service at its disposal.

I didn’t always agree with Dick Lugar’s policy preferences. (I didn’t always agree with Bill Hudnut’s, and I worked in his administration.) But I respected them both, and I respected the many, many other persons of integrity and intelligence who called the GOP their political home before it devolved into a cult composed of racists and moral midgets.

I miss them.

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.

An Excellent Example

Ever since my days as Executive Director of Indiana’s ACLU, I have tried to explain the philosophy behind the First Amendment to well-meaning citizens who simply wanted to shut down those people spreading “bad” ideas, or later, to students who couldn’t understand why people they found hateful (many of whom were, indeed, hateful) were being allowed to peddle their bigotry.

I still remember a hearing held by a City-County Council committee “investigating” the Marion County Library because it allowed minors to access books that the chair of the committee considered inappropriate. (She wasn’t mollified by the fact that the library honored the directives of parents who didn’t want their kids to access certain materials. She explained that a lot of parents weren’t–in her eyes, at least–good parents who would avail themselves of the opportunity to censor their children.)

I don’t know how often I’ve tried to explain that the Bill of Rights–and especially the First Amendment–answers the question “who decides?” The Bill of Rights is a list of things that  government doesn’t get to decide.

I just read one of the very best explanations of that simple rule that I’ve come across. It was written by Wally Paynter, Executive Director of the Tri-State Alliance, in response to folks who want the Evansville Public Library to discontinue its “Drag Queen Story Hour.”

A few quotes:

Some members of the community are trying to limit what library programs are available to the public. It is similar to banning books. As an EVPL patron, I have a choice of what books I read and what programs I attend. However, it is not my right to decide what books other patrons are allowed to read and what programs others are allowed to attend….

Some Christians oppose Santa Claus, stating it takes away from the reason for the season. My pastor does Santa Claus Story Hour at the EVPL locations. Those who oppose the character Santa Claus do not try to stop other parents from bringing their kids to the event. They just don’t take their kids.

The same is true for Halloween. Some Christians oppose the celebration of Halloween. But do we end Halloween events at EVPL, or do we let parents choose what programs to take their kids to?

The letter also calls out the homophobia being expressed during this debate, a reminder that it is all too often marginalized people who are censored. But the most powerful point being made is reflected in the quoted paragraphs: our Constitution protects individual autonomy–the right of each of us to form our own moral, religious and political opinions, to determine what is important in our lives (what philosophers call our telos) and to choose how to live those lives.

So long as we do not harm the person or property of others, and so long as we are willing to respect the same rights for others, we are free to “do our own thing.”

Don’t like that magazine? Don’t read it. Don’t approve of that play? Don’t see it. Think that book is scandalous? Don’t buy it. Don’t approve of drag queens reading books to kids at the library story hour? Don’t take your kids.

In our system, you have the right to decide what you will read, attend and believe. But as Wally Paynter points out, you don’t have the right to decide what other people will read, attend and/or believe.

Live and let live is evidently really hard for some people.

That Pesky Thing Called Reality

There are plenty of reasons to oppose Trump’s “big beautiful wall,” and I’ve listed a number of them in previous posts. Most fall in the category of “if the wall were built, this is why it wouldn’t deter unauthorized immigration or drug trafficking.”

Less attention has been paid to the reasons such a wall won’t ever be built.   

As Elie Mystal recently wrote at Above the Law,

Can all of us lawyers and law students and legal scholars and legal reporters just talk among ourselves for a minute? Can we all just pull up a chair or a stool or whatever bouncy-ball thingy you think is blasting your core right now? Can we just talk as adults and acknowledge that the federal government has ground to a halt over a wall that will never, ever get built?

The reason for Mystal’s confidence can be found in the Fifth Amendment, which–among other things– prohibits government from taking private property without just compensation. That “takings clause” is why states have eminent domain laws.

Opposition to the use of eminent domain for any but the most obviously “public” purposes   has been a staple of Republican ideology, so I’ve been surprised that so few supposed conservatives have raised the issue.

My real life friends know that I’m basically a Republican when it comes to takings. I don’t even put the scare quotes around the term. A whole canon of law has been built up around the Fifth Amendment’s commandment, “nor shall private property be taken for public use, without just compensation.”

 We can debate the finer points: I do not happen to think that Kelo v. New London is the worst Supreme Court decision in the history of mankind, as some conservatives do. … But it isn’t great! And there are conservative justices sitting on the Supreme Court who have figuratively been bred to oppose that decision. Add them to the progressives who will view Trump’s Wall as the bigoted monstrosity that it is, and I think you’re looking at 8-1 decisions against the government in eminent domain cases to build the wall. Only Justice Brett, he of the monarchical theory of executive power, can be reasonably be expected to side with the government on this issue. And even then, we know Kavanaugh seems to like to follow along with whatever the “cool” kids are doing.

The government doesn’t own most of the land on which the wall would be built–it would have to “take” land from those who own it, and people who stand to lose their property to allow construction of the wall will almost certainly go to court. Talking Points Memo recently quoted a Texan whose property is at risk:

The federal government has started surveying land along the border in Texas and announced plans to start construction next month. Rather than surrender their land, some property owners are digging in, vowing to reject buyout offers and preparing to fight the administration in court.

“You could give me a trillion dollars and I wouldn’t take it,” said Cavazos, whose land sits along the Rio Grande, the river separating the U.S. and Mexico in Texas. “It’s not about money.”

I couldn’t agree more with Mystal’s concluding paragraph.

I mean, if Trump was saying, “I’m going to shut down the government until Congress funds my matter transporter so I can beam Latinos back to their country of origin,” I feel like the scientific community would be screaming, “The ability to deconstruct and reconstruct living beings at the molecular level does not exist because of limitations imposed by quantum uncertainty!” Similarly, lawyers should be screaming, “The United States government does not have the capability of taking private lands on this scale because of limitations imposed by the Fifth Amendment.”

It’s not just lawyers who aren’t screaming. I wonder why all those conservative Republicans who raise holy hell about property rights and takings are so quiet about the threat to property ownership posed by the bloviator-in-chief.

Blame The Courts

What’s that old saying? The enemy of my enemy is my friend?

 Over at Dispatches from the Culture Wars a few days ago, Ed Brayton actually endorsed a theory offered by Jonah Goldberg.

Both Goldberg’s column and Brayton’s comment on it were offered in the run-up to Trump’s demand that he be given broadcast time to address the nation about the “crisis” at the border. Both predicted that Trump would declare a “national emergency” entitling him to ignore Congress and build his ridiculous wall.

As we now know, during that broadcast Trump simply reiterated his previous, fabricated “reasons” for building the wall. But he has continued to threaten the tactic.

Goldberg noted that such a move would be contrary both to common sense and the rule of law.

Do we really want to establish the precedent that the president can simply declare “It’s an emergency” like some magical incantation and then completely bypass property rights and the will of Congress just so he can fulfill a campaign promise that, if Sam Nunberg is to be believed, began as a consultant’s gimmick to get the candidate Trump to talk about immigration and what a great builder he is?

Moreover, if Trump actually attempted to use the military to seize private land, spending money Congress did not authorize, think of what the news cycle would look like, not from Trump’s perspective but from the perspective of other elected Republicans. Assuming that the Supreme Court or Congress didn’t stop him — a big assumption — would you like to run for office defending hourly images of armed U.S. troops kicking in doors or rolling out concertina wire? Is it beyond imagining that at least one Texas or Arizona rancher would get shot defending his property?

According to Goldberg, the theory then circulating in Washington was that the White House was fully aware that an order of that sort would generate multiple lawsuits and would likely be blocked almost immediately by the courts. That–in their view–would be the best of all possible worlds; it would extricate Trump from a box of his own making. He’d be able to tell his base he’d done everything he could, but his plan for America’s safety had been blocked by those terrible judges.

The reason this scenario seems so plausible is because such a patently illegal declaration would mimic a dishonest and destructive strategy that is pursued with some regularity by legislators at all levels of government. They can pass a bill they know to be unconstitutional, placating the constituents who want it, secure in the knowledge that the courts will bail them out.

I still remember a long-ago conversation with a student in one of my graduate classes, who happened to be a State Representative. He had just voted for a bill requiring schools throughout the state to post the Ten Commandments. I knew he was fully aware that such a law would violate the Establishment Clause, and I asked him why he had voted for something he knew to be unconstitutional. He replied that the “folks back in Mayberry” would be angry if he’d voted no, so he’d decided to “let the courts take the heat.”

There are a number of problems with that strategy. It rewards moral cowardice, and it feeds hostility to the judiciary among people who don’t understand the constitution, the function of the courts, or checks and balances.

And eventually, if Trump and the GOP get their way, pretty soon we won’t have competent, principled judges on the federal bench who are willing to “take the heat” in order to protect the constitution from cynical legislators pandering to constitutionally-illiterate voters.