If the court rules here for President Trump, I don’t see that many lingering problems; I don’t know that we’ll ever have a president again like Trump, who says such awful, awful things on a daily basis,” Blackman said.Blackman's argument requires a willful blindness to the implications of giving someone "who says such awful, awful things on a daily basis" the basically unconstrained power that modern presidents have with regard especially to foreign and military affairs. The theoretical possibility that some "future president" might be constrained by the willingness of the Supreme Court to take judicial notice, as it were, of manifest bigotry coupled with setting aside ordinary administrative procedures, should take precedence, he argues, over the clear and present danger that Donald Trump presents to the integrity of our constitutional form of government. From our perspective, this is legal formalism run riot. Blackman has responded to an earlier version of this argument.
“I worry much more if they rule against President Trump, and they give courts [a] green light to parse campaign statements and the like, this could potentially hamstring not just this president, but also future presidents.”
As always, I am opening up this post for comments, but I beseech those who wish to take advantage of my generosity actually to read the Graber-Levinson essay before commenting. We spend forty pages supporting our argument, including, for what it is worth, copious quotations from a variety of political conservatives who share our concerns about normalizing the egregious Chief Executive inflicted on us by the Electoral College (and Russian skill in manipulating Facebook, plus whatever role was played by Hillary Clinton's own tone-deafeness and sheer stupidity in the way she responded to the email issue).
aaa .
Thanks for the post Sandy. I responded to your and Graber's essay last year on Lawfare: https://lawfareblog.com/neutral-principles-and-presumption-regularity-era-trump
ReplyDeleteJosh Blackmun's statement is sadly and widely misguided.
ReplyDeleteWhy is the fact that Trump is particularly offensive in that fashion going to make something upholding the ban so trivial? If anything, I think his position could be turned around; the argument can be made that the rule [that this ban was illegitimate] will rarely be applied as strictly all things considered (a benefit of judgment that factors in everything) given other people won't be deemed worth such strong medicine.
And, history has shown that yes, Virginia, there has been other pretty bad people in power. Next time it might be some local official, e.g., whose policy is struck down. "This won't happen again" is a rather naive and trusting view of governmental power. As to usage of campaign rhetoric, Kate Shaw wrote a good article on the point.
I appreciate your generosity and I have skimmed the article, which you cited (perhaps in draft form) in the past. But, with respect, people who comment on blogs will not generally read forty page articles before doing so. And, I think the basic core of the idea involved could be stated in a few pages at the most. It asks a lot of a causal commenter, who will often read many blogs, to read long articles before commenting. This is no disrespect to the effort put into these articles.
A basic rule in discrimination law is "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." (Arlington Heights) A jury weighing the evidence here takes different things into consideration, including the nature of the defendant. The same acts might be seen differently when done by "x" or "y" there quite objectively.
[This applies to striking down a law too -- realistically, if at times sub silento, judges will give more room to a legislature if a law was passed with more care. The haphazard nature of the travel ban is a mark against it. This applies to the discriminatory aspects as well as the argument it goes beyond what the statute warrants.]
With respect, don't know what your article adds here & if anything this "consensus" of non-republican required for a judge to overrule a governmental official might ironically be more like Josh Blackman than one might think.
"Donald Trump is a decidedly "non-Publian" president who is entitled to little or no deference"
ReplyDeleteHim personally or anyone under him? After all, he personally didn't craft this thing.
Does Mattis warrant more than Ben Carson? How do we determine such things?
Weighing normal rules, including those that warrant more concern when certain religious groups are burdened, etc., I again am not sure what this Guarantee Clause type argument adds.
Ok, I've read all 43 pages. And it was a painful slog indeed.
ReplyDeleteI needn't tell you that I think it fatuous to declare a "consensus" that Trump is unfit for office, when he has an ordinary popularity among members of his own party, and suffers abysmally only in the judgement of the opposition. (Some of which IS internal to his own party, of course, but they are still the opposition.)
This isn't a question of his merits, but of the opposition losing their capacity to accept that anyone else is entitled to hold office. Of their rejecting the idea that the electorate is entitled to hand that power over to someone they don't personally approve of.
A rejection of democracy itself.
It shouldn't be necessary to mention it because it should be irrelevant even if every word of it were true. Every slander in those 43 pages could be cosmically true, and it would all be properly irrelevant so far as any legal proceeding were concerned.
What you're discussing is in the nature of impeachment, partial, sure, but still impeachment, depriving a duly elected President of the powers of his office.
And impeachment is a power reserved to the legislature. NOT the judiciary.
The elected branches have some claim to exercise power from the very fact that they were elected. But every iota of power the judiciary exercises is premised on the claim that they are simply, neutrally, executing the rules put in place by others.
A judiciary which decides that it needn't follow the letter of the law, is no judiciary at all. You've set out to indict Trump, but in truth you're indicting the judiciary. For he has demonstrated far more fidelity to the law than your judges.
In short, the judiciary are not entitled to judge the fitness of any office holder to exercise the powers of their office, and when they attempt to do so anyway, they merely reveal themselves unfit to hold their own offices.
ReplyDeleteThe Trump suspension does not in any way threaten "the integrity of our constitutional form of government." However, a court denying any POTUS their Article II powers simply because the judge disapproves of the POTUS or his party would be a direct and fundamental assault on the Constitution's separation of powers.
ReplyDeleteIn the upcoming case, the Court should consider one and only one question: Does Article II grant the POTUS the power to suspend entry of persons from nations occupied by a wartime enemy?
The answer is self-evidently yes.
Defending our nation's borders in time of war is a fundamental responsibility of our CiC. In contrast, American citizens have no constitutional right to import foreign aliens into the United States and the residents of foreign nations have no rights whatsoever under our Constitution.
Historically, presidents have routinely suspended travel from enemy occupied nations, the latest example being Barack Obama suspending travel from Iraq for the same reasons Trump is spending travel from other al Qaeda/ISIS occupied nations.
It is telling that the people who are calling for the courts to unconstitutionally deny Trump's Article II powers made no such demand concerning Barack Obama.
"'Donald Trump is a decidedly "non-Publian" president who is entitled to little or no deference'
ReplyDeleteHim personally or anyone under him? After all, he personally didn't craft this thing."
Stephen Miller crafted it. That would simply reinforce the conclusion that the ban originated in bias.
I'm kind of skeptical of writing judicial opinions as if they were one-offs. That attitude got us Bush v Gore.
That said, I don't see that we have to go so far as to declare Trump unfit for office in order to find the ban discriminatory. Joe quoted the relevant standard. The principal difference in this case is that finding discriminatory intent in a legislative body is much more difficult than when, as here, we can identify particular persons who wrote and imposed the ban. Finding discriminatory intent has nothing to do with a lessened standard of deference based on Trump's unfitness, but on the vast amount of available evidence that Trump and Miller are bigots.
I haven't read Sandy and Mark's article, and may not by the time this post goes into moderation. But I did read Richard Primus' post at the Blog yesterday on the travel ban case before SCOTUS. Here is its closing paragraph:
ReplyDelete"I hope to read an opinion in this case that contains the sentence 'Korematsu was wrong the day it was decided But if the entry ban order is upheld, we should not be surprised to read an opinion in which the Supreme Court justifies its decision in part by noting that this case is not Korematsu. Which of course it isn’t; history rarely repeats itself that cleanly. But admirable decisionmaking requires more than condemning the precise thing that everyone has agreed to condemn for more than half a century. And if the Court pronounces the entry ban constitutional, we should not make the mistake of thinking that that pronouncement means that the entry ban is any better in our day, morally or constitutionally, than the Japanese exclusion order was in the 1940s. The Court upheld that one, too."
I was 14 years old when Korematsu was decided. Back then in the Boston area, much smaller steps had been taken by the US against a few Italians and Germans. The east Coast had less hysteria than the West Coast. Korematsu was a stain on the Court and America despite the perceived needs because of WW II. (I learned that there were a fairly large number of Japanese Americans residing in the northwest portion of the US who were not subject to internment as they were not "threats" in their locations.)
I don't know is Sandy and Mark's article addresses Korematsu. But America, at lease via Congress, declared war against the then Axis, a devastating war. We don't have a declaration of war by Congress currently. But Trump's bans were aimed primarily at Muslims and Muslin countries (with some variations post ban #1 with ban #2 and ban #3). Trump displayed animus both as a candidate, president-elect and as president.
Those who haven't done so might read Primus' post, which is much shorter than 40 pages. Perhaps Brett and SPAM might be of the view that Korematsu was correctly decided.
Discriminatory intent is irrelevant without discriminatory action, and discriminatory action is not excused by lack of discriminatory intent.
ReplyDeleteThus to say that the same act by another President would be approved is to admit it's not the action being judged, but the President. And, I repeat, that is the exclusive privilege of the legislature, not the judiciary. So long as the action itself is within the power of the office holder, why they did it is no proper concern of the judiciary's.
This does remind me of Bush v Gore. In the sense that the Court in that case saw a wrong, and insisted on addressing it itself, even though disputes in that area had been reserved for the state legislature and the House of Representatives to resolve.
An honest belief that there is a wrong that needs to be addressed doesn't properly mean anything if somebody else is assigned the resolution of such issues.
And the only body empowered to judge the fitness of a President to hold office is Congress.
"Perhaps Brett and SPAM might be of the view that Korematsu was correctly decided."
ReplyDeleteNah, the 14th amendment clearly settles that issue with regards to US citizens and to some extent lawful resident aliens. Korematsu was a gross violation of both equal protection of the law, and the privileges and immunites due US citizens of whatever descent.
Non-citizens abroad are a far different matter, lacking as they do any constitutional right to be here to begin with. Entry into the US is a gift which the government can extend or deny for whatever reason it deems sufficient, and they can have no legal complaint.
"Thus to say that the same act by another President would be approved is to admit it's not the action being judged, but the President."
ReplyDeleteTrump is not being judged in any sense other than the one relevant to the inquiry: did he have discriminatory intent? The answer to that question is "obviously yes". If a President without discriminatory intent issued a similar order, that could pass muster because the whole point is the presence or absence of discriminatory intent.
All laws discriminate. Laws against murder discriminate against murderers. What the Constitution demands is not "absence of discriminatory action", that being impossible, but absence of discriminatory intent.*
*Obligatory footnote to say that some cases of de facto discrimination may be struck down. I don't need to go into the legal distinctions here because it's only tangentially relevant to the travel ban.
Shag:
ReplyDeleteRichard Primus: "I hope to read an opinion in this case that contains the sentence 'Korematsu was wrong the day it was decided...
My first reaction to that sentence was WTF? What on Earth is the analogy?
Trump's suspension of travel from a handful of al Qeada/ISIS occupied nations is analogous to FDR's suspension of travel from Axis occupied nations.
Brett mixes various things in his first comment.
ReplyDeleteThe article makes a constitutional claim that there is a baseline qualification, at least to the degree that a certain presumption of constitutionality is required. It is not about "holding office" specifically. But, it's true that roughly speaking as to that qualification, he doesan't merely rely on an election. I question him there. The same applies to the "consensus" argument though if there was some constitutional requirement there, it might be something that is a legal question of fact for court decision in relevant cases.
IF the constitutional argument is correct, judges have a right to weigh that matter as it does in other constitutional questions. The claim of "libel" is a factual one. Trump isn't being removed from office. IF invidious discrimination was found, it would not be a denial of lawful power any more if he fired a janitor for being a Catholic. It assumes Levinson's constitutional argument is wrong to argue he doesn't want judges to act judicially. Nor is it beyond the power of the judiciary to hold him violating the 1A or not properly following statutory law, which are what various lower courts found.
It is not within the power of the office holder, here Donald Trump, to invidious discriminate, not follow statutory law or violate the Establishment Clause. On the merits, Brett disagrees he did.
"All laws discriminate."
ReplyDeleteInvidious discrimination seems to be a useful way to phrase it.
Someone with "discriminating tastes" is a good thing. Laws classify. The test is if it a wrongful classification, an invalid discrimination.
That's a good way to describe it.
ReplyDeleteSPAM's 9:01 PM comment closes with this:
ReplyDelete"Trump's suspension of travel from a handful of al Qeada/ISIS occupied nations is analogous to FDR's suspension of travel from Axis occupied nations."
But SPAM omits that Congress had declared war against the three Axis nations during WW II and that war had to confront the Axis in the nations they occupied and controlled and in their own nations. SPAM's reference to "a handful of al Qeada/ISIs occupied nations" is too glib as such occupations did not constitute control of the nations in which these separate groups at separate times had a presence; in fact these nations were fighting against these terrorist groups as their sovereignty was being challenged. While there was an "authorization" by Congress against al Qeada, there was none against ISIS. SPAM's glibness is a taint of the citizens of these nations that were being terrorized or threatened by al Qeada and later by ISIS. Apparently to both SPAM and Trump all Muslims from these nations "look alike."
Shag:
ReplyDeleteCongress enacted an AUMF/Declaration of War against al Qaeda, which was an umbrella group of Islamic jihadi groups, and all of the organization's sponsor nations. After Bush destroyed Al Qaeda in Iraq, the group reconstituted as ISIS.
The Korean War never ended and we are still at war with North Korea.
Iran has both been at war with the United States (most recently in Iraq and Afghanistan) and sheltering al Qaeda. A declaration of war is by definition a permission to start a war and is not required when an enemy is already at war with you.
The Trump criteria were nations which sponsor terrorist groups or terrorist occupied nations which do not provide sufficient information with which to screen travelers.
The fact a nation may not be completely occupied by an enemy was irrelevant in WWII and remains irrelevant now.
FDR's bar on immigration from Nazi occupied France was hardly a taint on the citizens of France who were being terrorized or threatened by the Nazis.
SPAM combines "Congress enacted an AUMF/Declaration of War against al Qaeda, ... " but Congress did not declare war against a nation. Bush did not destroy Al Qaeda in Iraq. ISIS was formed as a separate group; it was not a reconstituted Al Qaeda.
ReplyDeleteCongress never declared war against NoKo. Recall it was called a" police action."
Congress never declared war on Iran. And where in the Constitution is it stated that if America is already in an undeclared law with a nation there is no need for Congress to declare war to continue the undeclared war?
SPAM equates the current time as equivalent to WW II. France was occupied and controlled by Nazi Germany. Neither Al Qaeda nor ISIS controlled nations they were terrorizing; and these nations were fighting back against them. Was Germany permitting citizens of occupied France (or other nations the German occupied) to fly or sail or motor or train to safe countries? During WW II were airlines operating internationally in the same manner as today?
Congress has failed in its roll regarding its power under the Constitution to declare war. Recall that Obama sought an "Authorization" from Congress to take actions in Syria and Congress declined.
SPAM continues with his glibness and ignorance of history in his role as a Trump supporter of isolationism. And a reminder that it was SPAM in his Cruzing Daze [sic] who over and over described Trump as a fascist.
And by the Bybee [expletives deleted, despite Gina}, just where were those WMDs that "justified" the invasion of Iraq by the Bush/Cheney Administration without a declaration of war by Congress? And who can forget that this invasion was a factor leading to the 2007/8 Bush/Cheney Great Recession, as well as leaving the Middle East mess.
The world has changed. The concept of war has changed. But the Constitution still empowers Congress to declare war. Perhaps SPAM has confidence in Trump as C-I-C, who's all talk and no jock, an amoral person.
Further by the Bybee [etc, etc], I understand Melania smiled at Obama during Mrs. Bush's funeral service when he asked her if she was enjoying the Lincoln bedroom.
Whatever SCOTUS decides in the travel ban cases, it will be more than a tad political and will add to political dysfunction.
Check out the NYTimes editorial: "Will the Court Stand Up to Donald Trump?" on the travel ban cases. Could be we might get a "unANIMUS" decision?
ReplyDelete"Trump isn't being removed from office. "
ReplyDeleteI did say "partial"; He's being deprived of the power to do what another President could do. There's no mechanism in the Constitution for that at all, but the closest thing is impeachment.
Sandy is explicitly calling for the judiciary to judge Trump's fitness to be President, and deprive him of some of the powers of his office. Anywhere he does something the judiciary disapproves of, I guess. And the point here that we must not lose sight of, is that's not the judiciary's job.
Only Congress is tasked with judging a President's fitness for office. The judiciary's job is upholding laws. Including the very Constitution which gives the job of passing on a President's fitness to somebody other than the judiciary.
If his acts is lawful, that's the end of the analysis so far as the judiciary is concerned. And by conceding that another President could have lawfully done it, we concede that the act is lawful.
Sandy, and not Sandy alone, has lost the capacity to accept an election result he doesn't approve of. But the election of a President Sandy Levinson disapproves of is not a constitutional crisis.
Judges taking his advice would be one, though.
Also at the NYTimes this morning:
ReplyDelete"Republicans to the Court: Strike Down the Travel Ban"
By Thomas H. Kean, John Danforth and Carter Phillips
Mr. Kean, Mr. Danforth and Mr. Phillips have joined in an amicus brief opposing President Trump’s travel ban.
April 23, 2018
Their focus is upon the separation of powers, stressing the powers of Congress regarding the subject of the travel ban, and Congress' failure to accommodate Trump.
By the Bybee [expletives deleted, despite Gina] Brett, Sandy has not lost his constitutional fastball. I'm confident that Sandy hasn't "approved" of every president elected since he became of voting age, but has "accepted" their elections. But Trump is in a different category for reasons Sandy has detailed in many posts at this Blog and elsewhere. You, Brett, have been trolling Sandy with your ignorance of constitutional law not only at this Blog but at the blog on his and his wife's new book. I think that's your full time endeavor. I'm a little older than Sandy, but we both survived Nixon/Watergate and Bush/Cheney. Trump is a giant step beyond these two failed administrations. As the Op-Ed notes, Congress needs to rein in the Executive, especially in the hands of the amoral Trump who has won the support of the Revengelicals and the so-callled Forgotten (aka, in Trump's lingo, "losers"). We may not have a constitutional crisis as yet, but if words mean anything Trump's tweets lean in that direction.
Further by the Bybee [etc, etc], a little trivia: Sen. Danforth, one of the Op-Ed authors, was a strong force in support of Justice Thomas' Senate advise and consent.
It's fun to watch ostensible libertarians argue for a kind of deference to the federal government's restrictions and ostensible conservatives (who often say they're realists) arguing for the same based on stopping up one's ears and covering one's eyes to what the federal government's CEO and advisers have actually said.
ReplyDelete"Trump's suspension of travel from a handful of al Qeada/ISIS occupied nations is analogous to FDR's suspension of travel from Axis occupied nations."
ReplyDeleteIt is similar in effect to the policy that turned away the US St. Louis, yes. But it's similar to Korematsu in it's naked bigotry.
To me, this is a simple case.
ReplyDelete"Congress shall make no law respecting an establishment of religion"
Amendment I
"The First Amendment mandates governmental neutrality between religion and religion. . . . The State may not adopt programs or practices . . . which 'aid or oppose' any religion. . . . This prohibition is absolute." Epperson v. Arkansas
"a total and complete shutdown of Muslims entering the United States." Donald Trump
"I’ll tell you the whole history of it: When he first announced it, he said ‘Muslim ban...He called me up, he said, ‘Put a commission together, show me the right way to do it legally.’" Giuliani
A small child could connect these dots.
I presume the dots Mr. W refers to connecting between Donnie and Rudy relate to the quotes provided and not the "drag scene" they engaged in in 2000:
ReplyDeletehttp://people.com/celebrity/donald-trump-motorboats-rudy-giuliani-in-drag-in-unearthed-sketch/
Now Trump has the benefit of the attorney-client privilege going forward (although not for Trump then acting forward).
"It is telling that the people who are calling for the courts to unconstitutionally deny Trump's Article II powers made no such demand concerning Barack Obama."
ReplyDeleteIt's telling of nothing, because Obama, like his predecessors, did not profess to do that along religious lines. As Mike Pence said at the time, "Calls to ban Muslims from entering the U.S. are offensive and unconstitutional."
Shag:
ReplyDeleteBD: SPAM combines "Congress enacted an AUMF/Declaration of War against al Qaeda, ... "
but Congress did not declare war against a nation.
Your point being?
Bush did not destroy Al Qaeda in Iraq. ISIS was formed as a separate group; it was not a reconstituted Al Qaeda.
You really need to keep up. This is old intelligence.
"Congress never declared war against NoKo. Recall it was called a" police action.""
True and irrelevant. We were very much at and remain at war.
Congress never declared war on Iran. And where in the Constitution is it stated that if America is already in an undeclared law with a nation there is no need for Congress to declare war to continue the undeclared war?
The text of a Declaration Clause. A declaration of war is Congress's permission for the POTUS to start a war. When an enemy wages war against us, the war already exists and the clause is moot. Are you really arguing that the CiC is prohibited from defending the nation against an enemy war until given permission to do so by Congress?
SPAM continues with his glibness and ignorance of history in his role as a Trump supporter of isolationism.
A travel ban applied to enemy occupied nations is isolationism?
And a reminder that it was SPAM in his Cruzing Daze [sic] who over and over described Trump as a fascist.
Trump's campaign did use fascist themes. This is irrelevant to the question before the Court: Does Article II grants POTUS the power to suspend travel from nations supporting or occupied by a wartime enemy?
"It's telling of nothing, because Obama, like his predecessors, did not profess to do that along religious lines."
ReplyDeleteThe claim that this is somehow "undemocratic" makes the charge even more risible, since Trump got 3 million fewer votes.
Mr. W:
ReplyDeleteAmendment I "Congress shall make no law respecting an establishment of religion"
Congress is not making a law creating a state religion.
Americans have no right to import foreign residents and foreign residents have no rights whatsoever under the Establishment Clause.
If you assume the Establishment Clause is a limit on government rather than a right and then somehow read its text to prohibit the POTUS from implementing a prophylactic travel ban against foreign adherents to a single religion, the Trump order does no such thing.
BD: "Trump's suspension of travel from a handful of al Qeada/ISIS occupied nations is analogous to FDR's suspension of travel from Axis occupied nations."
It is similar in effect to the policy that turned away the US St. Louis, yes. But it's similar to Korematsu in it's naked bigotry.
You are free to note any passage of Trump's executive order restricting travel from these nations which is unconstitutionally "bigoted."
Donald Trump: "a total and complete shutdown of Muslims entering the United States."
The Trump order does not implement "a total and complete shutdown [or any restriction whatsoever] of Muslims entering the United States."
BD: "It is telling that the people who are calling for the courts to unconstitutionally deny Trump's Article II powers made no such demand concerning Barack Obama."
It's telling of nothing, because Obama, like his predecessors, did not profess to do that along religious lines.
Trump made no such argument on behalf of this travel order. You are citing campaign rhetoric proposing a completely different prophylactic order. Trump is doing nothing Obama and several other president have not previously done.
Mr. W: It's fun to watch ostensible libertarians argue for a kind of deference to the federal government's restrictions...
Mr. Trump's order does not infringe on any American liberty.
"This is irrelevant to the question before the Court: Does Article II grants POTUS the power to suspend travel from nations supporting or occupied by a wartime enemy?"
ReplyDeleteYou leave out on of the questions before the court: whether the proclamation violates the establishment clause of the Constitution
Is, as SPAM claims, this the question in the travel ban cases before SCOTUS?
ReplyDelete"Does Article II grants [sic] POTUS the power to suspend travel from nations supporting or occupied by a wartime enemy?"
SPAM avoids specificity in his efforts at responding. SPAM doesn't understand isolationism and history of America First.
"Congress is not making a law creating a state religion. "
ReplyDeleteRight from the horses mouth:
"a total and complete shutdown of *Muslims* entering the United States."
Mus·lim
ˈmÉ™zlÉ™m,ˈmo͝ozlÉ™m/Submit
noun
1.
a follower of the religion of Islam.
"You are free to note any passage of Trump's executive order restricting travel from these nations which is unconstitutionally "bigoted." "
Right from the horses mouth:
"a total and complete shutdown of *Muslims* entering the United States."
Mus·lim
ˈmÉ™zlÉ™m,ˈmo͝ozlÉ™m/Submit
noun
1.
a follower of the religion of Islam.
"Trump made no such argument on behalf of this travel order. "
"a total and complete shutdown of *Muslims* entering the United States."
Mus·lim
ˈmÉ™zlÉ™m,ˈmo͝ozlÉ™m/Submit
noun
1.
a follower of the religion of Islam.
"I’ll tell you the whole history of it: When he first announced it, he said ‘Muslim ban...He called me up, he said, ‘Put a commission together, show me the right way to do it legally.’" Giuliani
"Mr. Trump's order does not infringe on any American liberty."
"Congress shall make no law respecting an establishment of religion"
It's always nice when what you've already said refutes the proposed counters of those opposing it.
I'd like to also, in the name of accountability, revisit some past comments from our resident fascist Bart.
ReplyDeleteRemember when he slandered resource officers in his mindless defense of 'gun rights?'
https://balkin.blogspot.co.uk/2018/03/the-wisdom-of-publius-and-our.html
I'd like to note some counter-evidence to his sloppy slander:
https://www.cnn.com/2018/03/20/us/maryland-school-shooting-resource-officer-response-trnd/index.html
https://www.snopes.com/fact-check/carolyn-gudger/
Also, remember when Bart whined about the federal government talking about looking into right wing extremist groups? Note the Waffle House killer of four over the weekend identified as a 'sovereign citizen,' one of the very same right wing extremist groups the report in question examined.
ReplyDeletehttps://www.usatoday.com/story/news/2018/04/22/waffle-house-suspect-travis-reinking-sovereign-citizen/540543002/
Ian Millhiser flagged another bit of selectivity: the same justices most concerned about religious accommodations to protect religious believers even for corporations are likely to be doubtful this measure is problematic.
ReplyDeleteI did say "partial"; He's being deprived of the power to do what another President could do. There's no mechanism in the Constitution for that at all, but the closest thing is impeachment.
Presidents [or whatever Trump is, ha ha] do not have "the power" to violate statutory law or the Constitution. So, we go back to the basic question.
Sandy is explicitly calling for the judiciary to judge Trump's fitness to be President, and deprive him of some of the powers of his office. Anywhere he does something the judiciary disapproves of, I guess. And the point here that we must not lose sight of, is that's not the judiciary's job.
Sandy Levinson (and his co-author) argues there is a basic constitutional "publican" qualification and if it is not in place, judges should not presume their acts are legitimate. This doesn't mean the acts are not. It is a higher standard of proof. The judiciary has the power to determine if a governmental official violates the law. I would use that general power usually normal rules w/o using his technique.
If his acts is lawful, that's the end of the analysis so far as the judiciary is concerned. And by conceding that another President could have lawfully done it, we concede that the act is lawful.
I don't think it was "conceded" some other President could do what was done here. I think the article is making a general argument that Trump, based on the evidence provided, is a particularly easy case using his test. Some future Trump type is not deemed like Josh Blackman not likely or something. Anyway, realistically, what is "lawful" depends on a bunch of factors. If a mayor already violated the rights of the homeless, e.g., a second go around will result in a local judge more suspicious. The same in various other scenarios. Trump has the negative aspects that makes a typical official having a harder time of it.
Sandy, and not Sandy alone, has lost the capacity to accept an election result he doesn't approve of. But the election of a President Sandy Levinson disapproves of is not a constitutional crisis.
SL argues that Trump is particularly problematic based on rules that would apply to others as well. An "election result" doesn't mean officials aren't subject to constitutional rules. I actually agree that his test is not the best one, but partially since it isn't necessary. Basic traditional rules here will get you to the same place. Not just for Trump.
Mr. W:
ReplyDeleteThe Establishment Clause amended the Constitution, including Article II. However, this clause in no way, shape or form prohibits the Trump travel order, which does not discriminate on the basis of religion.
Your spamming of Trump campaign rhetoric does not change these facts.
"However, this clause in no way, shape or form prohibits the Trump travel order, which does not discriminate on the basis of religion."
ReplyDeleteDoes not discriminate based on religion?
Again, from the horses mouth.
"a total and complete shutdown of *Muslims* entering the United States."
Mus·lim
ˈmÉ™zlÉ™m,ˈmo͝ozlÉ™m/Submit
noun
1.
a follower of the religion of Islam.
"I’ll tell you the whole history of it: When he first announced it, he said ‘Muslim ban...He called me up, he said, ‘Put a commission together, show me the right way to do it legally.’" Giuliani
To recall, here are the questions for tomorrow's argument:
ReplyDeleteIssue: (1) Whether respondents' challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)'s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.
http://www.scotusblog.com/case-files/cases/trump-v-hawaii/
Yes. Yes. Maybe. [I'm wary of global/national injunctions, but if the decision is wide enough, the matter is somewhat unimportant here.] Probably not. [Going at this over and over again seems unnecessary but guess it's a somewhat technical issue.]
Mr. W. doesn't want to play hide the ball. He's not fun.
ReplyDeleteEveryone here should imagine a Democratic candidate who says "I think Christian organizations involved in political areas are terrible and I'm calling on them to be restricted in their activity." Then he gets elected and he instructs the IRS to aggressively vet and restrict the tax status of ostensibly Christian organizations involved in political areas, but he now says the policy has nothing to do with his previous comments.
ReplyDeletePeople like Bart and Brett would, rightly this time, lose their sh*t over such a policy.
Here they're acting differently because, frankly, they're bigoted towards Muslims.
Mr. W:
ReplyDeleteLooks like my slap down of your specious arguments against the Trump travel order hit a nerve.
Of note concerning your unhinged rant of 10:47...
Fascists impose firearm restrictions. Opposing these is true anti-fascism (not to be confused with the socialist thugs who call themselves ANTIFA).
You may recall I am the one advocating placing armed and trained police officers in schools to provide security. This does not change the fact that most "school resource officers" are currently ill-trained and among the least qualified police officers.
And the 10:54 rant...
The reprehensible government report which I criticized argues that advocating constitutional limits on government is an indicator of future terrorism.
The "sovereign citizens" are an quasi-anarchist movement whose crimes are generally limited to evading taxes and other laws restricting their personal sovereignty. Sovereign citizen theory does not advocate terrorism.
There is no evidence the Waffle House terrorist engaged in murder to advance sovereign citizen goals. Rather, he reportedly displayed symptoms of mental illness.
Be careful playing guilt by association games. Far more of these terrorists are also leftists and/or Democrats.
I would like to reaffirm that the idea Trump is being singled out is furthered by Sandy Levinson's article & I think unnecessarily so. The claim was there w/o that argument. But, that approach (ironically not that far from Josh Blackman "Trump is unique, and mainly because he talks crudely or something, so let's not worried about the future") that "publican" requirements particularly are violated by Trump unnecessarily advances it.
ReplyDeleteThe bottom line here is not unique to Trump. If some city has a similar policy applied to let's say subways and ferries -- or some other policy negatively affecting a religious or race group in a comparable way -- and the same general evidence is provided, it could be struck down. In various cases, this was done. Discrimination, including specifically involving the Establishment Clause, is a thing, and it happened before 2017 and will happen long after.
The courts in our system has a role in stopping it. This is part of the "republican" system we have, but the special argument set forth is not necessary, even though Trump is a case study of non-republicanism (small "r") in action.
The sovereign citizen movement is one that is particularly and exactly identified by the report you objected too.
ReplyDelete"This does not change the fact that most "school resource officers" are currently ill-trained and among the least qualified police officers."
Your slander continues, contrary to even anecdotal evidence.
"Sandy Levinson (and his co-author) argues there is a basic constitutional "publican" qualification"
ReplyDeleteWhich just happens to be found nowhere in the actual text of the Constitution.
"SL argues that Trump is particularly problematic based on rules that would apply to others as well."
That he might potentially object to the election of a different President, too, scarcely cures the problem.
The problem here is that Sandy would impose a new and rather vague qualification to hold the office of the Presidency, and exercise its powers, a qualification nowhere found in the Constitution, and which really just boils down to, "Does Sandy Levinson think the candidate is fit for the office?", and encourages judges to implement this qualification in the utter lack of any statutory or constitutional language underpinning it.
In the name of fighting a constitutional crisis, he advocates creating one.
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ReplyDeleteWhich just happens to be found nowhere in the actual text of the Constitution.
ReplyDelete"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence."
How "The United States [including the federal courts] shall guarantee ... a Republican Form of Government," including "Publican" or "Republican" Art. II officeholders is a matter of reasoning things out. The "actual text" is used by the article to do so.
That he might potentially object to the election of a different President, too, scarcely cures the problem.
So, Brett agrees it isn't "just Trump." It surprises me not a tad that BB and SL would disagree on what governmental officials are violating the Constitution in ways that in large part matches the political party of the person in office.
Does Sandy Levinson think the candidate is fit for the office?"
No. It is a matter of those -- including Congress -- using all the evidence available when applying their powers to guarantee a republican form of government under our constitutional system. Realistically, a Congress is going to act differently there when some (invent one) a tyrant is objectively in power. Or, someone objectively seen as really unfit.
They have a duty there to trust them with power less. They have a duty to put them to a higher standard of proof. As applied to courts, this is trickier. I think normal rules there, including where possible discrimination against certain groups or express constitutional barriers get more attention (Carolene Products, Footnote 4) does the same basic work. But, there does seem to be basic overlap.
Sandy Levinson is creating a constitutional crisis.
There already is a crisis. As to his technique, realistically, it is already factored in to some degree when adjudicating as I noted. His special framing seems unnecessary to me.
Joe:
DeleteTyranny is the act of exceeding the Constitution’s limits on power such as the POTUS ruling by decree to rewrite, suspend or grant dispensations from the laws of Congress.
The remedies are judicial review and impeachment.
The courts have no power whatsoever to deny a POTUS the powers granted by the Constitution.
SPAM at 11:32 AM with:
ReplyDelete"
There is no evidence the Waffle House terrorist engaged in murder to advance sovereign citizen goals. Rather, he reportedly displayed symptoms of mental illness."
fails to make clear that advancing "sovereign citizen goals" may be a symptom "of mental illness."
Many things we do and say, and which nobody contests, are not in the Constitution. Nowhere does the Constitution say that the US is a republic. Nowhere does it use the word "federalism" or any similar word. Nowhere does it give the President power to fire an appointed official. Etc. ad infinitum.
ReplyDeleteYes, the federal government is to guarantee to every state a "Republican" form of government.
ReplyDelete"Even" with a President Sandy doesn't like, the form of government is Republican. It alters the form of government not at all for the President to be somebody Sandy Levinson disapproves of. Adolph Hitler could be resurrected and elected President, and we'd still have a Republican form of government. Just with a very bad President.
"It is a matter of those -- including Congress... "
"Including" Congress. How generous of you, when only Congress has any authority at all to pass on the fitness for office of a President, through impeachment. Nobody else, and least of all the judiciary.
That is the fundamental corruption of what Sandy proposes: He'd have the judiciary overturn the result of an election, if only in part. Have them usurp the power to overturn that outcome.
He's proposing nothing less than a judicial coup, and justifying it on the basis that Trump is incredibly, fantastically awful. That there's even a consensus regarding his awfulness, even as he's at 40-50% approval in the polls. That's some consensus, rejected by approaching half the public!
Sandy, seriously, have you considered that your desired to be rid of Trump might actually be driving your evaluation of him, rather than the other way around?
Mark: Many things we do and say, and which nobody contests, are not in the Constitution. Nowhere does the Constitution say that the US is a republic. Nowhere does it use the word "federalism" or any similar word. Nowhere does it give the President power to fire an appointed official. Etc. ad infinitum.
ReplyDeleteThe Constitution describes in detail the grants, limits and divisions of government power the Founders called a republic and the division between national and state powers we call federalism.
Article II grants all executive power to the POTUS and hiring and firing decisions are an executive function.
The text of the Constitution does not specifically provide that the federal government that is spelled out is a republican form of government. But the Constitution does call for the federal government to guarantee for the states a republican form of government. All states are not in the same mode as the federal government, although most are similar to the federal model. The Constitution does not provide a definition of what constitutes a republican form of government Is there a SCOTUS case that has addressed what constitutes a republican form of government under the guarantee clause? In some states, judges are elected in various ways. A state can apparently have a unicameral legislature. I don't know if originalism provides the answer. The text of the Constitution doesn't.
ReplyDeleteBrett's 2:23 PM comment in its opening paragraph seems to believe that the federal government is a republican form of government in the same manner as the guarantee clause in his attempt to criticize Sandy. As to suggesting Sandy is seeking a judicial coup, SCOTUS can under certain circumstances render a decision adverse to a president. But under the Constitution the Supremacy Clause does not specifically provide for Judicial Supremacy over the federal executive and legislative branches. Trump might pull an Andrew Jackson.
republican form of government
ReplyDeleteA "republican" form of government under our system includes various constitutional forms that Adolph Hitler in action did not secure. Brett can repeat "Sandy" all he wants, but the article sets forth an argument for what this entails that is definitional, not merely subjective. Just as one that would explain what "equal protection" means constitutionally.
[For instance, the article sets forth -- for who cares about that sort of thing -- original understanding regarding the type of official required in a republic; rule of law in the "due process" sense recognized here also would be required. Hitler's Germany lacked both.]
Brett disagrees on what exactly the term means. Using actual words in the document, two people disagree.
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ReplyDeleteSL's argument to me applies to each constitutional official in relevant cases such as the Senate providing advise/consent power. I think the Federalist Papers and so forth advanced SL's argument largely as a political question, but the principles would be used there.
ReplyDeleteThe harder case is using it as a matter of judicial review, which includes overruling elected officials in the appropriate case. Elections or no elections. Popularity or no popularity. An originalist might distrust such popularity, especially misguided temporary factions. At any rate, opinion polls are of limited value.
I think his argument is too open-ended there but it overlaps with judicial review where the presumption of constitutionality is lower. That is his argument -- the non-publican executive has the power but the checks (congressional, judicial and otherwise if it applies) should be applied in a stronger sense.
Finally, to the degree the Guarantee Clause only protects republican government to the states, I would agree with Mark Field that there is a general structural principle that we are a republic and that guides federal action generally. The article follows that.
SPAM at 3:38 PM credits the "Framers" for calling the federal government a "republic." Here's what one Framer is reported to have said:
ReplyDeleteAt the close of the Constitutional Convention of 1787, [Benjamin] Franklin was queried as he left Independence Hall on the final day of deliberation. In the notes of Dr. James McHenry, one of Maryland’s delegates to the Convention, a lady asked Dr. Franklin “Well Doctor what have we got, a republic or a monarchy.” Franklin replied, “A republic . . . if you can keep it."
With Trump, the serious question is "Can we keep it?"
The question to Franklin was an either/or. Perhaps if the question were broader, Franklin's answer might have been more detailed. But let's admin that textualism doesn't provide the answer. Clearly the Constitution did not create a monarchy. But Trump may have different ideas. And it should also be pointed out that Article III does not specifically provide for "judicial review." As Mark pointed out, the Constitution doesn't say a lot of things.
Shag:
ReplyDeleteWe lost Franklin's republic almost a century ago with the advent of progressivism and its absolute bureaucracy. There is very little left of the Constitution's limits on government power, which expressly forbid most of our progressive political economy.
SPAM continues his march back in time for his uniived MAGA days of The Gilded Age of the late 19th century featuring the Robber Barons. Perhaps that explains why SPAM is now in lockstep with Trump.
ReplyDeleteBut on a more positive (musical) note, all you younger commenters here should check out this NYTimes Obit:
https://www.nytimes.com/2018/04/24/obituaries/bob-dorough-jazzman-with-a-hit-kid-music-series-dies-at-94.html?hpw&rref=obituaries&action=click&pgtype=Homepage&module=well-region®ion=bottom-well&WT.nav=bottom-well
I'm sure you young-uns will enjoy the nostalgia of your Schoolhouse Rock days, especially with the two videos included. Mention is made in the Obit of "I'm Only A Bill," which may have gotten some of you young-uns interested in the Constitution. I enjoyed some of the Schoolhouse Rock with my own young-uns on weekends. I usually avoid reading Obits (inspired by Satchel Paige's admonition not to look back), but Bob Dorough lived long and was most productive with his contributions to young-uns, our future. (Perhaps Brett and SPAM were not permitted to watch?)
Alas, both Trump and SPAM with their MAGAs try to take us back in time, as time marches on. As for me, "I'm Hip."
The theme of Sandy's post is well reflected in the NYTimes Op-Ed:
ReplyDelete"Flattery Got Ronny Jackson Only So Far" By Frank Bruni, April 24, 2018
Here's a teaser paragraph:
"The president obviously did no meaningful vetting of Jackson. And thus he demonstrated anew the discernment that was surely on the Republican strategist Steve Schmidt’s mind when he recently offered this assessment on MSNBC: 'From a personnel perspective, we’ve never quite seen the assemblage of crooks, just outright weirdos, wife beaters, drunk drivers, complete and total incompetents that’s been assembled.'”
How does this comport with Article II's "take care" clause? And as Brett should be aware, Trump has forgotten the Forgotten that comprise Trump's base (although Trump has not forgotten his white supremacy chops).
In the course of this thread, SPAM and I have had some back and forth on Congress' power to declare war. For a primer on the subject, check out the NYTimes Editorial "When Presidents Go to War" April 24, 2018, which focuses on a proposal by Sen. Tim Kaine that Sen. Bob Corker has joined to exercise Congress' power but in a limited way. We have a loony president in Trump in a time of several potential military conflicts. Trump as C-I-C is conflicting. Imagine, Trump's got his third National Security Adviser with Revoltin' John Bolton, and his nominee Mike Pompeo for his second Sec'y. of State barely survived a Sen. Committee vote as a meeting with NoKo is planned to be held shortly.
ReplyDeleteTo Trump's credit in foreign policy, however, his great genes permitted him to notice and deflect French leader Manny Macron's speck of dandruff off his shoulder.
BD: We lost Franklin's republic almost a century ago with the advent of progressivism and its absolute bureaucracy.
ReplyDeleteShag: Mention is made in the Obit of "I'm Only A Bill," which may have gotten some of you young-uns interested in the Constitution.
Excellent bookend.
SNL's skit "I'm Just A Bill" perfectly illustrates my point. If you believe in the Constitution's limits on the exercise of absolute power, do you laugh or cry?
I wonder if SPAM cries or laughs about:
ReplyDelete1. Whether water should be clean for drinking and other personal use.
2. Whether the air we breathe is clean and not adverse to our health.
3. Whether food is pure and safe for human consumption.
4. Whether drugs are actually safe and effective.
5. Whether medical devices can be relied upon to test accurately.
These are but a few of the areas that the "absolute" [SPAM's adjective] bureaucracy SPAM degrades, products of the progressive era, provided for in bills passed by Congress and signed into law by presidents. Why, SPAM left behind "big law" in FL for the quality of life in a rural area of CO, the Mile High State (of mind) to represent alleged drunk drivers in local police courts via primarily plea deals, enjoying mountain climbing, and perhaps CO's more recent recreational Ganja.
SPAM's "bookend" includes his "novel" The Gilded Age of the late 19th century. Congress can undo the bureaucracy Congress has created over the years via new "I'm Just A Bill[s]" by detailing such based upon the ken of Congressmen without the experience of the bureaucracy with its expertise; or Congress can rein in portions of the bureaucracy that get out of hand. With a population of over 300 million today, Congress doesn't have the time, energy or knowledge to detail complex subjects that need detailed regulation and experience. It's a lot different today than back in 1787 when the population was approximately 4 million and agricultural and rural. Progress happened technologically, as America expanded and grew, requiring appropriate regulation, a function provided for in the Constitution. The bureaucracy resulted from the powers of both Congress and the Executive, with some supervision from the Judiciary, all provided for in the Constitution. Perhaps SPAM's quality of life in CO today might be even better had there been proper regulation of mining in CO that might still impact clean water.
Shag:
ReplyDelete1) Only a small fraction of the regulatory morass deals with preventing people from causing actual harm to one another. Most of the regulatory morass misdirects our economy and enforces our byzantine tax code.
2) Of that small fraction of harm regulations, many of these are cost ineffective because they cost billions of dollars to address insubstantial or non-existant harms. By their nature, unaccountable bureaucracies ignore the law of diminishing returns and continue to issue decrees long after they make any economic sense.
3) Congress is more than capable of enacting laws addressing actual substantive harms. Congress critters do not need to be subject matter experts. Congress can task the bureaucracy with studying a problem, advising Congress and recommending regulations. However, our elected representatives will make the final policy decisions and can be held accountable for those decisions by the people.
4) A bureaucracy lacks the knowledge to provide people with the goods and services they need and want as does a free market of businesses and customers. Thus, the argument that the more complex an economy becomes, the more it requires government direction is 180 degrees wrong. If the government bureaucracy cannot efficiently run even the simplest business, how can it run a complex economy?
Josh Blackman tweeted a link to his position on the ban and excerpts this part:
ReplyDelete“I think this is a silly policy,” said South Texas College of Law professor Josh Blackman. “But it’s not my job to make these sorts of decisions, and traditionally courts have deferred to the executive when dealing with matters of national security.”
Silly policy? Ah. Like when Justice Thomas thought criminalizing the sexual relationships of gays and lesbians was "silly" but something states can do. Invidious discrimination, oh so reasonably has over and over been handwaved like that. States get to do that! Over and over again justified injustice. The courts have limited the executive too and it's time for the "no blank check" language of Hamdi v. Rumsfeld to be taken out of storage.
We need not use some "publican" test here. Basic application of the law will do the trick.
I have the feeling that Josh is now seeking to appear less of an advocate for Trump (e.g., emoluments) moving towards his version of "objectivity" with his reference to "silly policy" by relying on what he perceives as courts traditionally doing. Silly is as silly does?
ReplyDeleteSPAM's bromides dissolve regarding Congress' abilities as witness its inactions regarding its power to declare war, but even more so by its political dysfunction in recent years. Look at what the GOP Congress passed with its stake the rich tax law of 2017 but describing its populism. Also, Congress has failed to take steps to curtail that much of the bureaucracy, perhaps because of the time commitments for raising reelection campaign funds. Do the math. Congress lacks the knowledge and time and effort required to pass laws that address in detail regulatory requirements. SPAM is obviously inhaling DUI fumes in his idyllic law practice, not to mention the Ganja.
ReplyDeleteBut, I'm not an advocate for Trump. I find him silly and he says such awful things.
ReplyDeleteI'm just saying he gets to do all these things. Why do people say such mean things about me?
I guess Josh is no longer on the short list for SCOTUS. But maybe he'll grow up.
ReplyDelete"But, I'm not an advocate for Trump.
ReplyDelete...
I'm just saying he gets to do all these things."
You write that as if it were somehow self-refuting, rather than a perfectly sensible response: Not liking Trump in no way, (Despite Sandy's essay.) implies that he, having been duly elected, isn't entitled to exercise the powers of his office.
Naked partisanship dressed up as scholarship is still naked partisanship.
ReplyDeleteAnd "I dislike stuff Trump does, therefore no deference for him" is naked partisanship. I don't want right wing judges deciding Obama is too much a Caesar either. All Presidents get the same amount of deference
But Trump's statements about banning Muslims certainly at least evidence a discriminatory purpose. Nor are we at war with all the countries in the order. The question is purely about how much deference any President gets to ban nationalities from entry.
Shag:
ReplyDeleteCongress has plenty of time to enact necessary laws to keep people from causing one another demonstrable and substantive harm, a constellation of laws far smaller than you presume.
Our bipartisan progressive establishment in Congress unconstitutionally delegates its legislative power to an absolute bureaucracy so that it can avoid making hard decisions.
As I noted before, we lost Franklin's republic almost a century ago.
Not liking Trump in no way, (Despite Sandy's essay.) implies that he, having been duly elected, isn't entitled to exercise the powers of his office.
ReplyDeleteIt is not a matter of "liking" the guy; at some point, you are "advocating" for him and his positions. This gets some pushback by those who strong disagree as defending fascism or some other bad things. Blackman was taken aback by the force of such reactions. He shouldn't be.
The critics include lots of people who think Trump was "duly elected" and is "entitled to exercise the powers of his office" -- but thinks such and such isn't that. You thought the same thing about various things Obama did.
"But Trump's statements about banning Muslims certainly at least evidence a discriminatory purpose."
ReplyDeleteI absolutely agree, with the proviso that discriminatory purpose is beside the point if you don't actually discriminate, and the actual travel ban order didn't discriminate on the basis of religion. It applies to everybody from the relevant countries, regardless of their religion, and nobody outside the relevant countries, regardless of their religion. It literally does not discriminate on the basis of religion!
Sure, it demonstrates disparate impact, but that's unavoidable if you're going to do something about terrorism in a world where most of the terrorists are of one particular religion.
I'd have actually been happier with the ban if it had discriminated on the basis of religion, as there's a religiously based genocide going on in some of those countries, and we've banned the victims of it, too.
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ReplyDelete"It is not a matter of "liking" the guy; at some point, you are "advocating" for him and his positions."
ReplyDeleteYeah, I'm seeing a lot of that lately: The idea that simply defending the point that some person or group has rights which shouldn't be violated somehow aligns you with them. Otherwise you wouldn't complain about the pogrom.
I utterly reject that idea.
"The critics include lots of people who think Trump was "duly elected" and is "entitled to exercise the powers of his office" -- but thinks such and such isn't that."
But that, explicitly, isn't what Sandy is suggesting. Rather, his position is that Trump is some kind of cosmic evil which can't be permitted to exercise the powers of the office a "normal" President could.
I'll re-phrase my comment regarding Dilan's remarks.
ReplyDeleteJudges do in various cases provide a lower presumption of constitutionality and in general even "reasonableness" review will in close cases to some degree depend on the ideology of the judge. But, the rules in place are valid. Sandy Levinson's article can apply to a person with liberal policies. It isn't merely partisan. But, its breadth is likely to be problematic in application, with partisan biases in place. Again, a narrower approach will do here.
====
As to Brett, I'll stick with my actual language. At some point, you are advocating for him and his positions. Two things there and not both in all cases. Not "aligning" to Trump, full stop. Not some general idea about a person (like someone with the right to believe that women should cover themselves in public head to toe) having "rights."
Sloppy use of language is open to confusion. Also, my comment that started this subthread was about Josh Blackman and others, not "Sandy Levinson." I think his permission, which doesn't just apply to Trump, is too strong. But, as I said, and which the article does talk about, as a political question (regarding congressional action, e.g.,) it is a rather mundane comment about playing hardball. Something you are fine with in that context.
Is Brett speaking as a Trump expert on "code words" understood by Trump's Forgotten base?
ReplyDeleteBut apparently Brett would rather be more direct:
"I'd have actually been happier with the ban if it had discriminated on the basis of religion, as there's a religiously based genocide going on in some of those countries, and we've banned the victims of it, too."
I would point out, however, that Trump's travel bans were not aimed at victims of genocide, although the bans might expedite the genocide.
SPAM likes to repeat:
ReplyDelete"As I noted before, we lost Franklin's republic almost a century ago."
Let's assume that takes us back to 1919, just post the end of WW I. We had the Roaring Twenties with Republicans Harding and Coolidge who were succeeded by Hoover upon whom the former dropped the 1929 Crash that precipitated the Great Depression that Hoover could not resolve in the remaining three years of his term. Hoover in turned dumped this on Democrat FDR, who was thwarted by the conservatives on the Court until his second term. FDR had to face the impacts of WW II, which conservatives in Congress did not want to engage in until December 7, 1941. America had to be quickly mobilized to fight this declared War (by Congress) on two major fronts, contents and oceans apart. Fortunately, America and its allies prevailed. FDR died early in his fourth term, succeeded by VP Truman., who had to address not only rebuilding America economically, but to improve the rest of the world. The Soviets, once an ally, began a competitive cold wa, making America's role internationally much more difficult. But the Soviets ended the cold war post-Reagan. We've had Republican and Democrat presidents since the end of the cold war, entering into the 21st century with a surplus (thanks to Bill Clinton), but then we had 9/11/2001, which changed America and the world drastically. Matters since 9/11/01 are too recent to need to set forth.
According SPAM we still had "Franklin's republic" in place before the time period I describe. Just what events in this time period brought an end to "Franklin's Republic" according to SPAM?
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ReplyDeleteBD: "As I noted before, we lost Franklin's republic almost a century ago."
ReplyDeleteLet's assume that takes us back to 1919...
So many historical errors....
With the exception of the Fed, Wilson's progressive political economy did not survive Harding and Coolidge.
Assume instead 1929 when the progressive Hoover unleashed a perfect storm of progressive policy which FDR expanded and made permanent.
We had the Roaring Twenties with Republicans Harding and Coolidge who were succeeded by Hoover upon whom the former dropped the 1929 Crash that precipitated the Great Depression that Hoover could not resolve in the remaining three years of his term.
Complete mythology.
The Fed created the late 1920s market bubble with an easy money policy, the market corrected at the end of 1929 and stabilized by January 1930.
Hoover unleashed a perfect storm of progressive misdirection of the economy which caused the deep 1930-1932 recession. (1) Smoot Hawley "fair trade" tariff, which stated a trade war; (2) the progressive Fed simultaneously raised interest rates to counter a fiat money inflation it created in the late 1920s; (3) defaulting loans from the trade war came at the same time the Fed was reducing the money supply available to banks, causing a series of bank runs; (4) listening to Keynes, Hoover jawboned business into raising or maintaining wages during a deflation in order to maintain demand, but instead caused massive layoffs as the price of labor became too expensive; (5) Hoover imposed a "millionaire's tax" to double federal spending to increase demand, which sent the economy into free fall.
Hoover in turned dumped this on Democrat FDR...
FDR campaigned on reversing much of Hoover's progressive policy. Once elected, FDR kept or expanded every misbegotten Hoover policy and then permanently established the progressive political economy.
...who was thwarted by the conservatives on the Court until his second term.
Hardly. As background, the New Deal borrowed its recovery plan from Mussolini and Hitler.
From Mussolini, the New Dealers created the corporatist monster known as the NRA, under which the government agreed to suspend anti-trust enforcement against companies which followed government wage and price directives and agreed to unionize. When the Court struck down this unconstitutional program, the New Dealers continued the program unofficially.
From Hitler, the New Dealers created the CCC and a variety of other make work programs.
The net economic effect was to raise the cost of labor above market rates and impose high private unemployment until these programs were reversed after WWII.
FDR had to face the impacts of WW II, which conservatives in Congress did not want to engage in until December 7, 1941.
The New Dealers LOVED WWII because it gave them a pretext to return to the "war socialism" of 1917-1920 where the bureaucracy directed most of the economy. The mythology was WWII "war socialism" pulled the nation out of the Great Depression. In fact, WWII had the same economic effect of borrowing a year's worth of GDP and burning the money, then going from town to town to shoot a handful or working age men, while crippling three times as many.
The first progressive depression did not end until after WWII, when Truman and later a Republican Congress cut spending in half to stop borrowing before the US entered into sovereign insolvency, reversed the tariffs, slashed the effective tax rates by increasing deductions, reversed the NRA and most of the war socialism, and leashed the unions. These reforms finally allowed the economy to recover until the progressive stagflation of the 1970s.
HOWEVER, the New Deal made the progressive tax code, welfare state and absolute bureaucracy permanent. Franklin's republic was lost.
SPAM makes so many hysterical -as well as historical- errors. No wonder SPAM looks back to his MAGA days of The Gilded AGE of the late 19th century when free prevailed, without regulations protecting the public, from the Robber Barons. SPAM blames the Fed for the 1929 Crash. That ignores the corruption during Harding's tenure that impacted Coolidge, who decided not to run for re-election for obvious reasons. SPAM does not understand the impact of what Hoover dumped on FDr in 1933. Republicans fought FDR tooth and nail. [Compare this to the Bush/Cheney Great Resession of 2007/8 dumped on Obama, a deep hole second only to the Great Depression, plus the Republicans goal to say no to everything presented by America's first African-American presidents and limit him to a single term.]
ReplyDeleteSPAM's comment on Democrats' view of WW II is obnoxious beyond even SPAM's norm for vileness. Perhaps a search through the archives of this Blog will disclose to those interested SPAM's lockstep with Bush/Cheney's invasion of Iraq in 2003 well documented to be based on lies. The only redeeming feature of SPAM is that he will not pass on his vileness genes.
Shag: That ignores the corruption during Harding's tenure that impacted Coolidge, who decided not to run for re-election for obvious reasons.
ReplyDeleteGovernment is generally corrupt, which is why the Constitution limits its powers.
What is your speculation as to why Coolidge declined to run for reelection? "Silent Cal" never said. His wife had no idea until the day of his announcement he was considering retiring from politics.
The political reality was Coolidge was extremely popular and the GOP pled with Coolidge to change his mind all the way up to the convention. If he ran, Coolidge would have won in a landslide and we never would have had Hoover and the Great Depression.
SPAM's comment on Democrats' view of WW II is obnoxious beyond even SPAM's norm for vileness.
Are you seriously saying you have not heard the reprehensible progressive mythology about WWII pulling us out of the Great Depression? I was taught this nonsense in high school during the 1970s. Paul Krugman pulls out this rotten chestnut every so often at the NYT.
As to the history of "war socialism," here is a recommended bibliography:
Robert H. Wiebe, The Search For Order 1877-1920 (New York: Hill and Wang 1967), p. 149.
Theodore J. Lowi, The End of Liberalism: The Second Republic of the United States 2d ed. (New York: W. W. Norton & Co. 1979), pp. 94-106.
James Grant, The Forgotten Depression (New York: Simon and Schuster 2014)
Ludwig von Mises, Socialism: An Economic and Sociological Analysis trans. J. Kahane (New Haven: Yale University Press 1951), 529.
James C. Scott, Seeing like A State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University Press 1998), 97-100.
Kyle Bruce, “Scientific Management and the American Planning Experience of WWI: The Case of the War Industries Board,” History of Economics Review (DATE), pp. 39-42
William E. Leuchtenburg, “The New Deal and the Analogue of War” in Change and Continuity in Twentieth-Century America, edited by John Braeman, Robert H. Bremner and Everett Walters (Ohio State University Press 1968), 85-88
Robert Higgs, “Crisis and Quasi-corporatist policymaking,” in Against Leviathan (Oakland: The Independent Institute 2004), 184-186.
Robert Higgs, Crisis and Leviathan (New York & Oxford: Oxford University Press 1987), 138, 143-147.
Hugh Rockoff, Until It’s Over, Over There, NBER Working Paper 10580, June 2004, p. 15-21
Reflect upon this vileness from SPAM's 4:04 PM comment:
ReplyDelete" As background, the New Deal borrowed its recovery plan from Mussolini and Hitler.
"From Mussolini, the New Dealers created the corporatist monster known as the NRA, under which the government agreed to suspend anti-trust enforcement against companies which followed government wage and price directives and agreed to unionize. When the Court struck down this unconstitutional program, the New Dealers continued the program unofficially.
"From Hitler, the New Dealers created the CCC and a variety of other make work programs."
Consider the America First movement during FDR's first and second terms and continuing into the third term before December 7, 1941. Remember Lindbergh? Remember Father Coughlin? If SPAM were around back then, he would have been in lockstep with them and their ilk.