Tag Archives: checks and balances

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.

An “Existential Moment”

One of the political scientists whose work I follow is Thomas Mann. Mann, a Democrat, has received numerous awards during a distinguished career, but he may be best known for his collaborations with Norman Ornstein, who served in Republican administrations. Their book It’s Even Worse Than It Looks documented the radicalization of the Republican Party and received a good deal of publicity.

Mann has a recent commentary on the Brookings website, in which he characterizes the election of Donald Trump as an “existential moment” The lede sets out the nature and extent of that moment’s challenge:

His candidacy, campaign, victory and actions halfway through the transition to governing, heretofore unimaginable, pose a genuine threat to the well-being of our country and the sustainability of our democracy.

As I write, the immediate concerns are the president-elect’s reactions to the Russian cyber attacks on the Clinton campaign; his refusal to takes steps to deal responsibly with the massive conflicts of interest his businesses pose to his conduct of his presidency; his designation of a prominent white nationalist as his chief political strategist and a trio of unlikely appointees to lead the National Security Council team in the White House who appear to lack the personal qualities essential to their critical role; a breathtaking contempt for the media evidenced by his refusal to hold press conferences and his Orwellian reliance on tweets and rallies to communicate with the public; and an assemblage of Cabinet nominees characterized mostly (though not entirely) by their inexperience in public policy and their contempt for the missions of their departments.

In the remainder of the article, Mann considers whether our traditional checks and balances-the rule of law, a free press, an institutionally responsible Congress, a vigorous federal system, and a vibrant civil society–are healthy enough to provide the counterbalance that will be required. He is not sanguine about the rule of law.

Trump’s choice for Attorney General was rejected by the Senate for a federal judgeship because of racist comments and has a history as a prosecutor more interested in prosecuting African Americans for pursuing voting rights than those trying to suppress their votes. His White House Counsel was Tom DeLay’s ethics counsel and demonstrated a blatant disregard for the law as chair of the Federal Election Commission. The courts play an equally essential role. The egregious partisan politicization of judicial appointments, which reached a nadir with Senate Majority Leader Mitch McConnell’s unprecedented refusal to even consider Merrick Garland’s nomination to fill the Supreme Court vacancy during the last year of President Obama’s tenure, has weakened the capacity of the courts to fulfill its responsibilities in the face of attacks on the fabric of our democracy.

The free press, as Mann notes and we all know, is in disarray (to put it as kindly as possible). We live in a “post-truth” media environment, surrounded by spin, propaganda and fake news. If the press is our watchdog, it has been de-fanged.

Congress? Mann points out that the “silence of Republican congressional leaders to the frequent abuses of democratic norms during the general election campaign and transition” has been deafening.

The risk of party loyalty trumping institutional responsibility naturally arises with unified party government during a time of extreme polarization. A devil’s bargain of accepting illiberal politics in return for radical policies appears to have been struck.

What about federalism? Can “states’ rights” be mobilized to constrain the incoming Trump Administration? Mann holds out some hope, but ultimately concludes

And yet the nationalization of elections and with it the rise of party-line voting has led to a majority of strong, unified Republican governments in the states, some of which have demonstrated little sympathy for the democratic rules of the game. For starters, think Kansas, Wisconsin, and North Carolina. The latter has just pulled off the most outrageous power grab in recent history, designed to reduce sharply the authority of the newly elected Democratic governor before he takes office.

As many commenters on this blog have noted, and as Mann concludes, it really is up to us.

The final wall of defense against the erosion of democracy in America rests with civil society, the feature of our country Tocqueville was most impressed with. Community organizations, businesses, nonprofit organizations of all types, including think tanks that engage in fact-based policy analysis and embrace the democratic norms essential to the preservation of our way of life. The objective is not artificial bipartisan agreement, but forthright articulation of the importance of truth, the legitimacy of government and political opposition, and the nurturance of public support for the difficult work of governance. It is in this sector of American society in which citizens can organize, private-sector leaders can speak up in the face of abuses of public authority, and extreme, anti-democratic forces can be resisted.

I hope we’re up to the task.

Happy New Year….