Tag Archives: separation of powers

What “Separation of Powers”?

I spent 21 years teaching university students that lawmakers’ policy decisions are constrained by the U.S. Constitution. I approached my classes in Law and Public Policy through a constitutional lens–an approach that began by emphasizing that Separation of Powers is a fundamental element of America’s governing structure.

Separation of Powers is the technical term for the division of government authority among the three branches: the executive, the legislative, and the judicial. When the men we now think of as “the founders” undertook revision of the Articles of Confederation (a revision that turned into a wholesale jettisoning), their concern for limiting the power of government led them to divide governmental power two ways–through federalism, which separated the jurisdictions of local, state and national government units, and through Separation of Powers--the allocation of specific powers to each of the three branches. They were very explicit about the purpose of that structure, which was to limit the ability of any one branch of government to exercise too much control.

When media pundits talk about Trump’s persistent violations of the Constitution, they tend to focus on how his actions violate specific elements of that Constitution (the assault on birthright citizenship, fiscal  decisions that are specifically within the purview of Congress, etc.). What we are experiencing, however, is an even more fundamental breach of our founding philosophy–a breach quite correctly identified in the recent “No Kings” protests.

The incredible damage that Trump has done and is continuing to do has been dependant on the abdication of the legislative branch, and the evisceration of the power of the courts. Not all the courts, but very definitely the Supreme Court.

The fecklessness and cowardice of the few Congressional Republicans who haven’t drunk the MAGA Kool-Aid is widely understood. (Here in Indiana, we have one of each: a Christian Nationalist MAGA idiot who was elected because he had an R by his name in our deep-Red state, and a far brighter coward who undoubtedly understands how destructive this administration is, but displays continued fealty to our would-be King in order to protect his re-election prospects.)

The GOP cult that currently controls Congress has neutered the authority of the legislative branch, turning it into a body that obediently acquiesces to whatever passes for policy from the increasingly insane occupant of the Oval Office.

The situation of the courts is different. As Talking Points Memo recently reported, the lower courts have been doing their jobs. District and appellate judges appointed by both Republican and Democratic Presidents have handed down decisions that are consistent with both the constitutional text and longstanding precedents.

Stanford University political scientist Adam Bonica compiled data on the administration’s win/loss record in federal courts from May 1 through June 23. He found that in cases brought against its sprawling excesses the Trump administration has lost 94% of the time at the district court level. That’s a truly terrible litigation record. But at the Supreme Court, Bonica found, DOJ won 94% of the time.

The Trump administration has eviscerated the Department of Justice, turning a once-storied, independent agency into Trump’s personal law firm. In its current iteration, the agency has brought cases that would once have been considered legally ludicrous, hoping that the Supreme Court would eventually counter the anticipated negative rulings of the lower courts.

“We are witnessing something without precedent,” Bonica wrote. “[A] Supreme Court that appears to be at war with the federal judiciary’s core constitutional function.”

Administration officials are well aware of how their Supreme Court allies have their back in this campaign to delegitimize the trial courts. “All these district courts throughout the country are tying our hands,” complained Attorney General Pam Bondi, under questioning from Sen. Patty Murray (D-WA) at a Senate Appropriations Committee hearing yesterday. “And here’s how we will follow them—when we get to SCOTUS, we’re winning.”

The Talking Points article accuses Trump’s Department of Justice of  “a completely unprecedented and coordinated vendetta to undermine the authority of federal district courts.” (Not just the federal courts: in April, FBI agents arrested a Milwaukee County Circuit Court judge,  charging her with interference with an arrest by ICE. The FBI’s claims have been contradicted by eyewitnesses who were in the courtroom.) As unthinkable as it would have been in any other administration, the  Department recently sued every sitting judge in the United States District Court for the District of Maryland. Why? Trump’s DOJ wants to invalidate a standing order that ensures an automatic two-day reprieve for immigrant detainees.

When neither the legislature nor the courts assert their constitutional powers, the Mad King is unconstrained. And the U.S. Constitution is history…

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As If We Needed Confirmation

The Washington Post recently published an article with the shocking news that “Republicans are abandoning pluralism.” Forgive my language, but no shit, Sherlock!

Let’s take an honest look at what the MAGA cult–the 21st Century version of the Confederacy– has accomplished in its effort to remake the United States into a country dominated by White men.

Thanks largely to Mitch McConnell, the GOP successfully managed to subvert the Supreme Court–to replace dispassionate judges with submissive pawns willing to jettison constitutional precedents and eviscerate the Separation of Powers in a wholly unAmerican effort to take the country back to the days when White Christian males ruled the roost, and women and minorities were decidedly unequal.

MAGA has always been about one thing and one thing only: Making America White Again. Good people frequently express astonishment over the cult’s devotion to Trump–an odious gangster unfit for any office, let alone the presidency. What they fail to see–or perhaps resist acknowledging–is the racist basis of that support. As we’ve seen with the passage of the horrific “Beautiful Bill,” MAGA folks are willing to deprive themselves of healthcare, willing to accept a lower standard of living, willing to bend the knee to masked ICE brownshirts, if they can thereby assure themselves of the continued social dominance of men with white skin.

MAGA emerged to confront their existential dread of a society in which women, Black folks, Jews and Muslims–not to mention gay folks–could consider themselves civic equals. When rational people scratch their heads and wonder why poorer Americans are “voting against their own interests,” they fail to recognize where those interests truly lie–and it isn’t in the pocketbook issues where Democrats (understandably but erroneously) believe those interests lie. Their interests are cultural, not financial.

Only people who are intentionally blind can fail to see the anti-DEI hysteria for what it is. Efforts at equity and inclusion are seen by MAGA as an assault on their privilege. In the racist mind, equality and inclusion of the previously marginalized is simply discrimination against White guys.

The cited essay by Philip Bump includes a report I’ve seen elsewhere, about a sixth-grade teacher who had hung a banner in her classroom, one that many of us have seen elsewhere: it shows a range of heart-holding hands, each in a different hue. The banner has a single statement: “Everyone is welcome here.” As Bump notes, “It’s an anodyne sentiment, at worst, but also a celebration of multiracial community. And for that reason — and explicitly that reason, as a school official explained in an interview in March — the banner was determined to be unacceptable.”

Saying that “everyone is welcome” has become a political statement in the way that “science is real” has become one. Not because these statement themselves are political or even particularly controversial. No, they are now tainted with politics because they reject the right’s rejections of both objectivity and pluralism.

It isn’t only race, of course. Misogyny and homophobia are part and parcel of the White Christian Nationalist worldview.

Bump notes, for example, that Republican support for same-sex marriage has fallen since 2022, when most Republicans supported it. Now, only 4 in 10 do, a level not seen since 2016.

CNN released polling last month that illustrates another shift centered largely among Republicans. Conducted by the firm SSRS, the poll asked Americans whether “having an increasing number of people of many different races, ethnic groups, and nationalities in the U.S.” was threatening or enriching to American culture. Most respondents said enriching — though Republicans were about evenly split between the two.

Notably, the pollsters asked the same question in 2019. Since then, Republicans have gotten 25 percentage points more likely to say that American diversity is threatening to our culture. Among White people, the increase was 16 points.

Bump shared polling that showed Republicans much more likely than others to say that White people face discrimination.Research also shows that most Republicans don’t see discrimination as having anything to do with economic inequality. Instead, Republicans are likely to attribute those inequalities to a lack of hard work and “will power” by Black Americans.

MAGA is filled with fearful, angry people desperately clinging to the evaporating tribal privileges that Trump is promising to restore. They’ve made a lot of progress while the rest of us weren’t paying attention, and it is going to take a monumental, concerted effort  to defeat them.

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Judges And Politics

American government operates through Separation of Powers–what we all (hopefully) learned in school is the division of governance into three branches: the Executive, the Legislative, and the Judicial.

The basic idea was that the legislature would pass laws, the Executive branch would enforce them, and the Judicial branch would ensure that both the laws and the methods of their enforcement were consistent with the Constitution.

It has always been more complicated than that, of course, but it is important to keep that basic framework in mind–especially the fundamental role of the judiciary. That role requires that judges be insulated from partisan politics to the extent possible–that they be free to decide cases on their merits. They may err, but the goal is to put on the bench people who will put aside their personal policy preferences and “call ’em like they (honestly) see ’em.” Even today, most do.

Partisans have always grumbled about the judicial branch. When a court strikes down a politician’s pet legislation, accusations of “judicial activism” are never far behind, and efforts to place partisan ideologues on the bench are nothing new. 

What is new is the degree to which partisans and autocrats are acting to politicize and capture the courts–and not just in the U.S.

In Israel, Netanyahu’s far-right administration has stirred up a hornet’s nest by advancing measures that would allow that administration to control the courts. In Hungary, Victor Orban has tightened his control over that country’s Courts.There are other examples, and they all threaten democratic accountability.

America’s Founders tried to insulate the federal judiciary from political pressure  by granting judges lifetime tenure.(People didn’t live as long back them, and thoughtful critics suggest that terms limited to 18 or so years could achieve the same goal.) Many states also employ judicial selection systems meant to minimize the influence of partisanship and politics –requiring local bar associations to evaluate nominees, and creating bipartisan judicial nominating commissions. These mechanisms do not–cannot–completely remove partisan politics from the process, but they certainly help.

The effort to minimize partisanship on the bench is consistent with the Founders’ effort to create a judicial system meant to check misbehavior by the other two branches. Both the legislative and executive branches were designed to answer to the voters; the judiciary was intended to answer to the Constitution and to keep the other branches tethered to the rule of law. 

Over the years, political activists and ideologues have succeeded in eroding that fundamental distinction between the branches by the simple expedient of judicial elections. 

When judges are elected, partisanship is inevitable. The current campaign for Wisconsin’s Supreme Court should be sufficient to erase any doubt. The candidates  have made no bones about their contending political ideologies:

Officially, the race is nonpartisan, but one candidate is closely aligned with Republicans and the other with Democrats. The state parties and dark-money groups are the biggest spenders in the race.
 
Milwaukee County Judge Janet Protasiewicz shored up Democratic support early in the race and easily rolled through Tuesday’s primary. She has said she backs abortion rights and condemned the election maps as “rigged.”

Conservatives were more bitterly divided, leading to a contentious fight for the other spot on the general election ballot. Emerging from the primary was Daniel Kelly, who was appointed to the state Supreme Court in 2016 by Gov. Scott Walker (R). While campaigning, Kelly — who lost his seat in a 2020 election — has touted his rulings to allow concealed guns on city buses and end the coronavirus lockdown imposed by Gov. Tony Evers (D).

Given how blatantly all four of the run-off candidates trumpeted their very different approaches to the law, it was ironic that conservative Kelly accused liberal Protasiewicz’s of  promising to “set aside our law and our Constitution whenever they conflict with her personal values,” while characterizing  his own ideological preferences as fidelity to the Constitution.

Protasiewicz has rebuffed such attacks, saying she isn’t prejudging cases but letting voters know her values. She has criticized Kelly for his rulings and the endorsement he received in 2020 from Donald Trump.

My interpretations of the Constitution and Bill of Rights are more in line with those of Protasiewicz, so–from an “outcomes” standpoint– I found the runoff election results comforting: (Protasiewicz had 46 percent of the vote, Kelly had 24 percent, and Protasiewicz won areas of the state that are normally heavily Republican.) 

That said, given current levels of American civic literacy and Constitutional knowledge, voters aren’t deciding which judicial candidate’s approach to the law is most consistent with the Constitution. Instead, they are encouraging the judiciary to identify with partisans in the other two branches–to choose a side.

If you don’t think that’s dangerous, think about Orban and Netanyahu.

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Justice, Justice..

Like many of you, I get the almost-daily newsletter from Heather Cox Richardson, who reliably reports on current events and provides valuable historical context illuminating them.

Last week, Richardson made a “catch” that I had missed–and it provided further evidence of the corruption that was (along with monumental incompetence) a hallmark of the Trump Administration.

Evidently, during a Senate hearing and in response to a question from Senator Sheldon Whitehouse, FBI director Christopher Wray  shed light on the Administration’s short-circuiting of the background investigation into then–Supreme Court nominee Brett Kavanaugh. (Note: I’m not sure when that hearing occurred–it may have been one held a year or so ago.) According to that testimony, more than 4500 tips about Kavanaugh that were received by an FBI hotline were “separated out” and transmitted to the White House without investigation. The FBI subsequently interviewed only people designated by the White House.

The agency completed the supplemental background check triggered by the accusations of sexual assault in exactly four days–and FBI agents did not interview either Kavanaugh or Christine Blasely Ford, the woman who publicly testified against him, or the other women who came forward to lodge similar accusations–Deborah Ramirez, and Julie Swetnick. 

The lack of clear vetting extended far beyond the allegations of personal sexual misconduct. As the Leadership Conference on Civil and Human Rights pointed out in a letter objecting to his elevation to the Court, Kavanaugh’s judicial conduct was a matter of equal concern.

Judge Kavanaugh’s 12-year record on the U.S. Court of Appeals for the D.C. Circuit, as well as his known writings, speeches, and legal career, demonstrate that if he were confirmed to the Supreme Court, he would be the fifth and decisive vote to undermine many of our core rights and legal protections.  In case after case, he has ruled against individuals and the environment in favor of corporations, the wealthy, and the powerful.  He has advanced extreme legal theories to overturn longstanding precedent to diminish the power of federal agencies to help people.  And he has demonstrated an expansive view of presidential power that includes his belief that presidents should not be subject to civil suits or criminal investigations while in office despite what misconduct may have occurred.  Many of our organizations opposed Judge Kavanaugh’s nomination to the D.C. Circuit,[1] and our fears and concerns have been realized.  Judge Kavanaugh has not served as a neutral and fair-minded jurist.  He has served as a conservative ideologue who lacks the impartiality and independence necessary to sit on the highest court in the land.

The letter went on to document the cases in which Kavanaugh had displayed his lack of “impartiality and independence,” his lack of commitment to racial justice, and his “extreme and disturbing views about presidential power.” The letter was signed by 180 organizations.

Then there was the matter of the 15 ethics complaints filed against Kavanaugh, alleging judicial misconduct during his tenure as a lower-court judge. Once he was elevated to the Supreme Court, proceedings investigating those complaints were dismissed.  Dismisal was because the ethics rule provides that proceedings may be concluded if the judge charged with conducting them finds that “action on the complaint is no longer necessary because of intervening events.” The intervening event in Judge Kavanaugh’s case was his appointment to the Supreme Court. “That is because the Act covers complaints only about circuit judges, district judges, bankruptcy judges, magistrate judges, and judges of some special courts.”

And so here we are… 

That this very flawed, partisan individual is on the Supreme Court is certainly troubling, but there have been other Justices whose flaws have been widely recognized. (Alito was an example well before Boggs.) What is far more troubling was the corrupt process that led to Kavanaugh’s confirmation. It’s one thing to find, after the fact, that a nominee lacks hoped-for judicial temperament or intellect. (The allegations against Clarence Thomas, for example, were fully aired, and most Americans only subsequently realized that the Senate had believed the wrong testimony.) Refusal to conduct a thorough vetting is a far more serious matter, and it’s pretty clear that short-circuiting a full and fair investigation was a deliberate–and successful– act of the Trump Administration.

I tend to harp on the importance of institutions, because the health of the American polity ultimately rests upon the integrity and ongoing utility of those institutions. Separation of Powers is a foundational element of our system of government, and when one branch can effectively control another by ignoring institutional safeguards in order to place favored individuals in positions of power, that foundational element is violated.

Elevating Brett Kavanaugh and denying Merrick Garland a hearing were two steps in the Right’s determined campaign to eliminate individual liberties and move America toward autocracy.

They have to be stopped.

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Approaching A Major Crisis

Donald Trump is refusing to produce documents demanded–subpoenaed–by Congress, and has instructed members of his administration not to comply with orders to testify to Congressional committees.

If this isn’t a constitutional crisis, the term has no meaning.

As several sources have reminded us, Article 3 of the Articles of Impeachment against Nixon asserted that the President

… has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President. In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.

As Josh Marshall of Talking Points Memo reports,

The White House isn’t doing the standard tussling with Congress about oversight: some stonewalling, some negotiation, taking some questions of privilege to court. It’s more accurately characterized as massive resistance. The Congress has a constitutionally mandated responsibility to oversee the executive branch. They are flatly refusing to comply with ordinary document production and testimonial requests across the board. It’s not a difference of degree but of kind. In itself it is an impeachment worthy refusal to follow the constitutionally mandated framework of American government. It’s up to Democrats to make this clear.

Here’s the very simple bottom line: If a President can refuse to comply with the demands of a Congressional oversight committee–part of a co-equal branch of government– America no longer has checks and balances or the rule of law.

Checks and balances and the rule of law are the very foundation of the American constitution. Governmental legitimacy is defined as adherence to that government’s legal framework–in our case, the constitution. Trump’s defiance is thus evidence of his administration’s lack of legitimacy.

If the Senate, under the control of Mitch McConnell (aka the most evil man in America), fails to stand up for the prerogatives of the Congress, history–assuming we survive to have a history–will brand them traitors. Their first duty is to protect the Constitution and the Separation of Powers; the crisis Trump is precipitating requires them to stop cowering in fear of Trump’s ignorant, rabid base and discharge their obligation to protect America.

(Speaking of ignorance, Trump has said he’ll fight any effort to impeach him by taking the matter to his buddies on the Supreme Court–once again demonstrating his utter cluelessness about constitutional processes and American governance.)

It’s hard to argue with Josh Marshall’s analysis of the current impasse.

But as much as anything else this is a political conflict: how to bring to heel a lawless President. The big error I see so far is that these joustings are being treated as legitimate legal processes which must be allowed to work their way through conventional processes and the courts. That’s not right and it gives the President free rein to try to run out the clock on any sort of oversight. Democrats need to find a language for the political debate that makes clear these are not tedious legal processes which will run their course. They are active cover-ups and law breaking, ones that confirm the President’s bad acting status and add to his and his top advisors legal vulnerability.

There is no hope for Trump; the man is aggressively stupid, proudly ignorant and quite obviously mentally ill (and those are his better qualities!) He is a perfect example of the Dunning-Kruger Effect.

The only question that still remains open is: how many Republican Senators are genuine patriots and how many are self-serving cowards? We’re about to find out.

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