Thank you for continuing to share these messages with your friends, if you are not already on our mailing list, please click here to be added to our list. You can also follow me on Facebook where you can read and share these messages. The more people we can reach, the more we contribute to this growing movement. We share these posts on our blog, A Path Forward to November 3, 2020, every two weeks, which means there will be a total of 100 missives before the Presidential election of 2020, in which our country will select a whole new course.
It was all there in seventh grade if we were paying attention. Our noble Democratic experiment was built upon separation of powers, including a system of checks and balances. Some would have made George Washington king, but he showed clear disinterest and the Constitution made it impossible. The President would be the chief executive and commander in chief. She or he would carry out the laws enacted by Congress. The President could sign or veto laws passed by Congress, and Congress could override a veto with a 2/3 vote of both the Senate and the House. The President would appoint and the Senate approve members of the Supreme Court, who would settle statutory disputes and, (bolstered by the Marbury vs Madison case in 1803) determine the constitutionality of acts of Congress.
Even the enormous powers exercised during wartime by Franklin Roosevelt and Abraham Lincoln left mostly unscathed this intentional, carefully-crafted system. It even has survived the worst judicial wrongheadedness, including the Dred Scott decision upholding slavery, and in our time, the tortured resolution of an election (Bush v. Gore) and the establishment of corporations as persons in Citizen’s United.
So, too, the Supreme Court and the 9th Circuit will survive Donald Trump, whose contemptuousness toward government institutions has been clear from the outset. Even so, one would not want to pass over the exchange between Trump and Chief Justice John Roberts too quickly. Some pundits seem to think it was just a bit of political theatre, but the labeling of judges by Trump as Trump judges and Obama judges and Bush judges was one of the greatest affronts to Trump’s oath of office. If there had not previously been scores of other Trumpian epithets hurled at Democratic institutions, more attention might have been paid.
No one is proposing that John Roberts be elevated in the pantheon, but it is to his credit that he paid attention. The resistance should be more pleased than is presently apparent. John Roberts knows more than anyone that over half of Supreme Court decisions are made unanimously. He also knows that in just over 20% of Supreme Court rulings, five justices outvote the other four. Most importantly, he knows that it is a very dangerous thing for the independence of the courts to be tweet-defined, especially when the tweeter-in-chief may end up having some personal matters before the court.
Especially delicious is that two of the judicial actions Trump criticized (protection of Acosta’s press pass and defense of Muelller’s legitimacy) were taken by Trump appointees. Bush judicial appointees have ruled against Trump positions as well. It is one thing to concede that politics influences everything, certainly the judiciary. But it is foolish to ignore that the facts of the case and the nature of the underlying law are huge factors in the practices of the courts and thus in the decisions impeding Trump. If he stops affronting the Constitution, the courts will stop admonishing him.
The media wants to leave it that each executive action was “ruled unconstitutional”, obscuring that each of these cases has different claims and different merits. The recent case blocking Trump’s reduction of places where asylum can be sought was simple --- the statutory language on asylum-seeking does not in any way provide the President this discretion, so he is unconstitutionally claiming powers he does not possess. The legal arguments over the press pass of Jim Acosta is all about whether a property right (Jim Acosta’s ability to do his job) can be constitutionally extinguished by Trump without “due process of law” guaranteed in the Bill of Rights. Adherence by Trump and Sarah Sanders to due process would be establishment of legitimate standards for accreditation. The court didn’t need to address this issue, but any such standards would have to be consistent with freedom of speech and of the press as guaranteed in the 1st amendment. Finally, the initial Trump travel ban was blocked by the courts over its denial of “equal protection of the laws” under the 14th amendment. Trump was faulted for a baseless division of Muslims and non-Muslims.
With the Mueller report coming out soon, and more indictments certain to emerge, we need to retain a sophistication regarding the role of the courts and each of the constitutional protections that block many Trumpian excesses. The Brennan Center, Southern Poverty Law Center and the American Civil Liberties Union (82 separate cases against Trump actions) have all been well funded by resisters to make certain we use every tool afforded to us in a country that has an independent judiciary. We will all make certain that they and our environmental litigators continue to have the support they need.
In the meantime, the lame duck Congress is coming to town, a month ahead of the best freshman class of new members of Congress to ever hit Washington. The goal for all of us is constant oversight, as vigilance is the price of liberty. We certainly don’t want to lose our edge during a lame duck session. The worst sort of mischief can be avoided by taking these three steps:
| 1) Knock Down the Wall | |
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Yes, there is going to be another wall show down. The House has passed $5 billion for the wall, and the Senate provided $1.5 billion for multiple border security efforts. The good news is that any appropriations compromise requires 60 votes in the Senate. Get used to this. The 50-vote budget reconciliation process was anomalous, and with the House going with the Democrats, it is a forgotten relic, mercifully. Trump’s selective interest in caravans (and the entirely bogus number of 500 criminals in the caravan) is designed to put pressure on the Senate in order to get 60 voters, as is his pledge to close down the government if his wall isn’t supported. Of course, Trump threatening to close down the government to get his way on the wall is a “go ahead, make my day” moment. But it remains the case that Charles Schumer would cut a $5 billion deal in a second if he could get some relief for Dreamers. You wouldn’t want Schumer or your own Senator of whichever party to get too careless on all of this. It is a good time to email your own two Senators, letting yourself get swept up by their email systems that favor people from their own states. They suspect what you think, but tell them anyway. The wall is un-American. It sends a signal to the world that we aren’t who we always said we were. Tell them that you want policies that provide a clear path forward for immigrants, asylum seekers and Dreamers. You might want to underscore your feelings on this matter. Peace Supplies has “No Wall” t-shirts, yard signs and bumper stickers. Also, although it is a dismal picture, there is no time like the present to think about those in your region who might be considering sponsoring the few refugees (30,000 or so per year) who are being allowed into the country. |
2) Don’t Forget Stacey Abrams |
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It is one thing to campaign hard in a contested election in which a state has huge ideological splits. It is another thing to be Stacey Abrams and have to do it when your opponent is in charge of the election process, is bent on voter suppression and will not recuse himself. Please don’t forget that Stacey Abrams’ story is not even close to over. Get on the mailing list of her new organization Fair Fight Georgia and give her a little money if you can. If we can get an election in Georgia where people are encouraged to vote rather than being frightened, she will win. |
3) Get Ready for All New Action of Climate Change |
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It’s all there in the Fourth National Climate Assessment, which was legislatively mandated twenty years ago. The Trump administration would have done away with it if they could have found a way to do so. This assessment was prepared by 13 federal agencies and is blunt and dramatic about the projected costs, which it says could be hundreds of billions of dollars. It notes that warming will continue to make weather events and fires more calamitous. Trump’s simple answer: “I don’t believe it.” This will not be the status quo for long. Next year the Democratic House will pass a climate change bill to increase our national efforts and Charles Schumer will look for Republican votes in the Senate. There are several Republican up for re-election in 2020 in states that have turned blue or are turning blue. These Senators will either put the battle against climate change on their plate or be held politically accountable for not doing so. With the House in Democratic control we have all new ways to up the pressure. This is going to be an intensive effort. A good start would be to place yourself on the mailing list of the U.S. Climate Action Network, which includes the major environmental organizations and hundreds of local action groups. |
It’s a new day, but not one that brings even a momentary thought of complacency. We are not tired, we are energized. The blue wave of November 6 is not signaling to us that we can walk away. It is telling us that we must not. We just created the biggest Congressional vote margin of victory since 1974. The Presidency is at stake in 2020, and with it our democracy’s essence. We’re just getting started.
David Harrison
Bainbridge Island, Washington
