Supreme Court defies Congress

 

Supreme Court defies Congress

Judicial scope needs limits

 

Gordon L. Weil

The real American Revolution was the Constitution, not the War for Independence.

The republican form of government was revolutionary.  Though the U.S. wasn’t history’s first democracy, there was nothing else like it.  Not wanting an all-powerful monarch, the Framers divided the government into three balanced branches, each with checks on the others.  It was a clean break with the British system.

All right, you already knew that.  The news is that it’s not working.

In Britain, Parliament has complete authority to say what the law is.  It can enact laws that are considered to make up the British constitution.  It’s often said that the U.K. does not have a written constitution.  That’s not correct; the constitution is made up of specific laws that govern the country.  For example, the U.K. has a Bill of Rights.

The courts there can interpret and apply the laws and set precedents, but they cannot declare unconstitutional a law passed by Parliament.  Courts accept laws as being constitutional; they may be changed by an Act of Parliament.

The American Constitution does not give the Supreme Court the power to declare unconstitutional laws passed by Congress.  In 1803, the Court itself ruled that it had such power and its ruling has always been accepted.  However, the Constitution gives Congress the authority to pass a law amending or even eliminating that power.

If the Supreme Court finds a law unconstitutional, it effectively repeals the law.  This is an obvious departure from the British system, and gives the Court the last word in government.  While the Court supposedly judges laws based on constitutional or legal principles, it may make political judgments, dress them up as legal, and overrule the president and Congress.

That just happened.  The Court nullified one of the historically most important federal laws, relying on the political judgment of a majority composed of six justices.

In 1965, bipartisan congressional majorities overwhelmingly passed the Voting Rights Act.   While the Fifteenth Amendment had given African Americans, most formerly slaves, the right to vote, many state laws continue to make their voting impossible.   A century after the end of the Civil War, the VRA gave the federal government the tools to make that right real.

The Supreme Court ruled that the VRA was a lawful way to apply the Fifteenth Amendment, assuring access by Black to voting.  The VRA has been amended five times, most recently in 2006, to expand its coverage and effectiveness.

But, in two rulings a majority of the Court, under Chief Justice John Roberts, has stripped the VRA of virtually all its powers.  The Court’s reasoning has been that the law discriminates in favor of racial minorities, which is not allowed by the Constitution, and must be ended when, in its judgment, special treatment is no longer needed.

In its first ruling, issued in 2013, the Court ended federal government supervision of elections where racial bias existed, because it found that such prejudice had been largely eliminated.  This action was like deciding the police were no longer needed, because they had suppressed crime.  It patted itself on the back for ending discrimination.

Just seven years after Congress extended federal supervision, the Court had repealed it.  The ink was barely dry on the ruling, when some states began removing Blacks from voting access.  The Court could readily see its judgment was wrong.  It didn’t.

Where the effect of state laws caused discrimination against Black voters, the VRA said they should be overturned.  But last week, the Court majority decided that the state laws must openly intend to discriminate.   It had ruled that gerrymandering districts for political purposes was constitutional, so state legislators have only to avoid mentioning race.

Louisiana, the state involved in the case, moved promptly to eliminate at least one congressional district represented by an African American.   The likely result is there will be fewer minority members of Congress.  The Court selectively ignored the obvious in favor of its opinion of how well the VRA had worked.

The judgment on whether the VRA was still needed is clearly political, based on nothing more than the opinions and ideology of six unelected people who are empowered to overrule legislation voted and signed six times by presidents of both parties.  This is too much judicial power.

The Court’s powers should be brought back into line with a balanced government.

The Court could be enlarged to assure a wider range of views.  As I have previously noted, the Republicans have “packed” the Court, so the Democrats could “unpack” it.   A mechanism exists for creating temporary slots on the Court, allowing more justices to be added.

Or Congress could decide to create a hybrid between today’s Court control and the British system, leaving the ultimate decision on constitutionality to be made by an elected Congress.

Shooting attempt creates new, but futile, gun control demands

 

Shooting attempt creates new, but futile, gun control demands

Should focus on uses, not ownership

 

Gordon L. Weil

Each time the U.S. undergoes a mass shooting or an attack on an elected official, calls are immediately raised for additional gun control.  Usually, those calls go unanswered.

The frequent reply is that “guns don’t kill people, people kill people.”  States may pass so-called red or yellow flag laws, allowing for temporarily taking firearms away from individuals with possible mental health problems.  Their effect is limited.

At the same time, gun sales may increase as the industry reacts by raising fears of possible government restrictions on gun ownership, though the manufacturers and the NRA succeed in blocking any such proposals.

It’s true that, by themselves, guns don’t kill people.  Does their ready availability make them the obvious tool of choice for people in responding to politics, personal disputes, or despair?   Is gun use a routine part of the national culture?

Most attacks on political figures are by zealots, driven so deeply into opposition that they seek to make a public statement or eliminate the person they hold responsible.  The shooter at last week’s White House Correspondents’ Dinner had an avowed grievance with President Trump and his administration.

Political shootings are a long-standing America tradition (three presidential assassinations between 1865 and 1901 plus two more attempts by 1933).  They continue, reflecting the deep divide in the country’s political life.  No longer does one party respect the patriotism of the other party, while opposing its policies.  The opposition has become a disloyal enemy. 

Trump has said he “hates” the Democrats, which he has labeled as “the enemy within.”  In full fury, he has called the Democratic Party as “the Party of Hate, Evil and Satan.”  That’s the language of war, not the language of open political communication.  It may last so long as MAGA Republicanism dominates politics, and Democrats respond to it.

While armed attacks on public officials of both parties and mass shootings, often at schools, raise legitimate outrage at gun violence, they miss a central fact about guns.  More than 60 percent of gun deaths in the U.S. are suicides.  Their deaths are as much a sign of a troubled health care system with its questionable focus on mental problems as of a failure to control guns.

Guns are widely available and easy to use, making them a ready method to express anger or eliminate personal woes.  The U.S. leads the world with 121 firearms per 100 inhabitants.  Canada comes in second with 35 per 100.  In last place among leading nations is Japan with less than one gun per 100 people.

How does that translate into firearms deaths? The U.S. is second to gang-ridden Brazil and has 11 deaths per 100,000 population.  Canada has two and Japan has less then one per 100,000.

The differing death rates may reflect gun control.  Rules are extremely tough in Japan.  Canada licenses owners and requires registration, but little is done in the U.S. and Brazil.  While most countries have “stand your ground” laws, many impose a burden of proof on shooters and the need for proportionality, unlike many American states.

American history may help explain the clear difference between the U.S. and other countries.  The nation once depended heavily on state militias, military units composed of average people trained and on-call in an emergency.  Citizens kept their rifles at home, ready for a militia call-out.

Unlike older nations, the U.S. had a huge frontier.  With little government, if any, the pioneers were responsible for enforcing laws and local practices in the West.  The frontier disappeared but not the frontier mentality.  People have stuck with their sense of independence, especially as the government became more entwined with their lives. 

Many people strongly adhere to a tradition embodied in the Second Amendment, adopted in 1791.  Powerful and well-funded political forces protect a narrow interpretation of that amendment against gun reform.

Limiting the use of firearms has become a partisan issue.  The Republicans adopt wedge issues on which voters focus and vote, while ignoring the rest of the GOP agenda.  Gun control, drawing on national tradition, works well as a wedge issue.  

Shootings are likely to continue, and gun control laws could pass only after greater, sustained, and widespread outrage.  The government won’t be authorized to seize personal firearms, and widespread gun ownership makes some effective control almost impossible.

Future policy will continue to grapple unsatisfactorily with firearms.   Unnecessary deaths will continue.  The focus needs to be more on gun use than on limiting gun ownership.

Militias are gone, so a major justification for keeping guns at home could be replaced by financial incentives providing for safe, offsite storage at ranges and shooting galleries.

Mandatory registration does not mean confiscation, as Canada shows, and despite gun industry claims. It makes sense for law enforcement.  Plus, politicians should disarm their irresponsibly heated rhetoric.

 

Trump “packed” Supreme Court

 

Trump “packed” Supreme Court

Its gains new executive power

Gordon L. Weil

 

The Democrats might gain majority control of the U.S. Senate in January 2027.  They could then block President Trump’s judicial appointments.  To avoid their filling vacancies in the Court’s conservative majority, some right-wingers have suggested that the two oldest justices – Clarence Thomas and Samuel Alito – should quickly retire, opening the way for younger replacements.

These resignations would follow a pattern of questionable Republican election-year moves to ensure a conservative majority.  The GOP-controlled Senate refused to consider an Obama nominee more than a year before the 2016 presidential election, later approving a Trump nominee.  It also rushed through a Trump nominee only a month before the 2020 election.

Presidents usually appoint Supreme Court justices holding views consistent with their political philosophy.  Trump has increasingly sought justices who not only align with his usually conservative views, but who will loyally back his policies. 

He gives greater weight to loyalty than to competence.  He has turned against the Federalist Society, a major source of conservative and competent lawyers named as his judicial appointees.  Because some had ruled against his policies, he now favors potential judges who are more closely aligned with MAGA.

The U.S. Supreme Court has taken over the legislative responsibilities of Congress, whose members would cling to their seats rather than taking on the risks of lawmaking. A Trump Court, dominated by his faithful, is adding executive style functions.

The New York Times has recently revealed that the Court is taking over executive authority without the usual judicial trappings.  It has uncovered the story of the Court’s “phantom docket,” which allows for rapid decisions with little or no thoughtful testimony or discussion.  Phantom docket decisions are often made before any lower court has ruled. 

With this shortcut, the Supreme Court becomes the only federal court making decisions on many major cases.  Only when it plans to confirm the decision of a lower court or simply wants to delay publishing its own conclusion, it may allow a case to progress normally or even to drag on for months.

The shadow docket began in 2016, even before Trump’s first presidential victory.  A year earlier, the Court had ruled against an Obama EPA decision, only to be told that it had already been implemented.  Obama then ordered the Clean Power Plan. When a court did not suspend it until the case concluded, the Supreme Court backed an unusual appeal for delay.

Memos among the justices show that Chief Justice Roberts, peeved by the earlier case, asserted that the Court would eventually decide against Obama and opposed delay.  He accepted claims that the Plan would cost hundreds of millions of dollars.  In fact, much of it was implemented voluntarily at no additional cost, but the Court had boldly asserted a new kind of authority.

Having done it once, it was easy for the jurists to keep using the procedural tool of refusing to suspend a Trump move, which has made it a part of the executive process. In practice that meant the policy could be pursued until much later, making the final reasoned decision almost pointless.  The procedural order functioned with the same effect as a later decision might.

It was somewhat like the saying, “Don’t confuse me with facts; my mind’s made up.”

The shadow docket has expanded.  The Court may refuse to suspend presidential executive orders, giving them a stamp of approval when there has been no legislative action.  In all such cases, the Court process, which traditionally has allowed for all sides the argue their case and present evidence, now yields terse orders, without explaining judicial reasoning.

The result is that the Court has become a key part of the executive lawmaking process.  It has been suggested that it has used the docket to block Obama and Biden and to aid Trump.  While the jury is out on that, the Court has undergone a major change and won’t readily abandon it.  Under a Trump Court, the phantom docket could continue to flourish, even after he leaves office.

The political power of the Court through its phantom docket and Trump’s appointments, provide for a Court sympathetic to Trump actions that would exist long after he is president.   A Democratic president, and Congress could face long-term opposition from Trump’s “packed” Court.

President Franklin D. Roosevelt faced a similar situation after the 1932 elections.  When Court conservatives, appointed by Republican presidents, blocked his policies, he sought to enlarge the Court membership and faced charges of “packing” it. The conservative Court relented, recognizing that Roosevelt had been overwhelmingly backed by the voters in the 1936 elections.

The Democrats should now contemplate enlargement of the Supreme Court.  They can show it’s already packed, so they can offer to “unpack” it and restore the Court as the judicial branch.

 

If Democrats win, they can’t turn clock back

If Democrats win, they can’t turn clock back

US, world have changed

 Gordon L. Weil

Many Trump opponents believe that when the Democrats regain power, partly through this year’s congressional elections and in the 2028 presidential race, they will be able to reset national politics back to life before MAGA.

It may be a nice dream, but it’s only that.  It won’t happen, because it can’t happen.

The immediate problem is money.  The federal government now operates with a massive national deficit, mainly because it keeps spending more while cutting taxes.  Without a huge reduction in military spending and an increase in taxes, the money simply isn’t there to restore the pre-Trump government.

The Democrats have worked hard to shed an image of being weak on defense, which is as much about job creation as building a better war power.  They see risk in trimming the defense budget, but might have to make cuts to revive Social Security and Medicare.   Otherwise, those social welfare programs will weaken.  Tough choice.

Progressives favor taxing the wealthy to recover revenues lost from Trump tax breaks.  The currently highest tax rate is 37%.  In 1963, it was 91% and as late as 1981, it was 70%.   Progressive proposals are far more modest, and they would pass the revenue on to middle-class taxpayers, not the poor.  Cutting deficits, now at their highest annual growth rate, is unlikely.

But there’s more that cannot be reversed.  Under Trump, the U.S. has not only greatly reduced efforts to halt global climate change, but it actively tries to unravel what has already been done.  Glaciers melt into the sea, and no Democratic policy can halt global warming and its impacts on the climate and the sea.  Restoration must give way to real remedies, not band aids.

That would require stepped up regulation, a Trump destruction project.  The Supreme Court has not allowed the EPA much latitude in rulemaking, meaning that change will have to come from Congress.  If anything can pass, it’s likely to be more limited than under previous administrations of either party.

The U.S. has been the world’s leader in science.  Look at the Nobel Prizes in the sciences, and there’s clear American leadership.  Many of the top scientists are at leading American research universities.   Trump has declared war on many of them, using doubtful charges about mainly undergraduate protests, to withdraw funding for advanced research.

American scientists are tempted to accept appointments at foreign universities.  Younger scientists may also prefer the prospect of foreign employment over the risks of working for the universities dependent on the federal government.  When the top talent is gone, it will be difficult to attract it back to the uncertainty or companies at home.

Relations with allies have been broken.  They have learned that American policy can be erratic and that they can no longer rely on the certainty of joint action on common challenges.  Trump rightly challenged their overdependence on the U.S., but seemingly misunderstood the nature of an alliance of sovereign countries, which may have differing analyses of world affairs.

The result of his pressure has been increased effort by all NATO allies.  But with their greater strength has come their sense of independence from reflexive support for the U.S.  Both Trump’s plan to take Greenland from Denmark, a loyal ally, and his war on Iran, for which he did not consult them but expected their support, wounded the relationship.

While some advocate a return to Atlantic partnership, the absence of trust and predictability would lead to a more careful and arms-length network.  Realistically, the Russian threat, revealed in Ukraine to be weaker than believed, may eventually require less of an increasingly questionable U.S. guarantee.

Finally, there is the nature of American democracy itself.  The growth of presidential power at the expense of Congress has come at the hands of presidents of both parties this past quarter century.  The Democrats can hardly be expected to abandon many of the powers that Trump has magnified with the Supreme Court’s approval.

To modify the Constitution by agreeing to answers to the questions that have been raised about its meaning over the past 250 years would open it to a transformation reflecting the views of conservatives or liberals rather than a consensus.   Because this is understood, both sides come to the brink but back away.

Unless members of Congress show greater faith in the leading constitutional role of their branch than in loyalty to their party, little would change under a Democratic presidency.  Compromise has come to mean “my way or the highway,” yet it remains essential for the American system to work.  

The country and the world undergo irreversible change.  It is too late to turn back, especially as increased executive power has become more acceptable, and charisma may matter more than character.  The times require creativity and leadership, but both are lacking.

 

 

  

Iran War pushes debt to dangerous level

 

Iran War pushes debt to dangerous level

Tariffs lead others to avoid U.S.

 

Gordon L. Weil

Americans are getting richer and poorer at the same time.

Last year’s changes to the federal income tax have brought lower taxes for many, showing up in their refund checks.  This year’s Iran war has created shortages.  Coupled with the effects of tariff policy, they push consumer and business prices higher.  Some economists calculate that the increased cost of gasoline exceeds the tax refunds.

Inflation is growing.  President Trump’s quest to have the Federal Reserve lower interest rates to promote growth would serve to boost it even more.  Even if he can remove Jerome Powell as Fed chair, its rate-setters probably won’t agree to a cut; they may even raise rates.

The national debt grows.  Tax cuts have been funded by both reducing programs and increasing borrowing.  Debt is the present borrowing from the future.

The International Monetary Fund, a worldwide financial agency, neutral on political issues, published its annual outlook last week.   Its view of the world’s economy reveals much the same concerns as exist in the U.S.

Two major forces are shaping the economy now, and they may have long-term effects. Both are made in the U.S.A. and especially in the White House:  the new tariff system and the U.S.-Israel war in Iran. 

The new tariff regime was quickly installed and is now resulting in entirely new trade patterns rapidly developing among nations.  The war has spread in the Middle East, impacts China and Japan, and drives up worldwide oil and gas prices.

While the Iran war has brought increased defense spending, that provides only limited help to the economy.  Unlike much other spending whose effect is multiplied as it flows through commerce, military outlays are consumed on the battlefield with much less of a multiplier.  Other elements of domestic production are reduced, and the debt grows.

For the IMF, much depends on how long the war continues.  The current ceasefire could be extended, though Israel may be reluctant to end the conflict.  If not, the war’s economic impact could “mean a close call for a global recession.”  It would take at least a couple of years to recover.

What about world trade?  Will the U.S. allow tariffs to stabilize, based on real economic justification?   New trade patterns are emerging that could revive commerce, though the American role would not remain the same.

American trade has declined with China and Canada, the two countries that retaliated against U.S. tariff increases.  U.S. trade shifted to Taiwan, Vietnam and Mexico.  China, setting a record in the export of its goods in 2025, focused on Asia and Europe.   Canada created new links with them as well, and it’s unlikely that these links will later unwind.

If Trump resumes raising tariffs on short notice for political reasons, the uncertainty will have an economic impact.  His moves would encourage other nations to continue orienting their trade away from the U.S.  The World Trade Organization, designed to keep trade fair and free and now largely ignored by the U.S. and China, will disappear.

One big question mark is the effect of artificial intelligence.  It may produce productivity improvement that could offset some of the negative impacts of the Iran war.   Much would depend on where and when these gains occur.  The IMF assumes its growth could be beneficial, but does not deal with concerns about its increasingly worrisome effects.

The U.S. remains the world’s dominant economy in the IMF’s current view.  Rather than allowing the private sector to retain its influence, the federal government asserts its ability to direct the economy, going beyond fiscal policy, to economic investment and even increasing its role in monetary policy.

But its influence is sure to decrease as other countries seek to develop more stable relationships.  The U.S. will continue to be an importer and its producers will want foreign markets, but its global position will be reduced.

The worst is yet to come. The national debt is about $39 trillion, far more than GDP, and steadily increasing.  Its annual servicing cost is now higher than military spending. 

The Trump administration won’t estimate the cost of the Iran war, though it is hundreds of billions of dollars.  Without a congressionally funded appropriation, most of the cost will be added to this year’s deficit and to the national debt.

The dollar is the world’s standard reserve currency.  In 1933, the U.S. killed the gold standard, the previous reserve, replacing it with a devalued dollar, backed by the American economy.

National debt payments could swamp the budget, surpassing the ability of future generations to pay it off.  The dollar would have to be devalued again, so that debt could be repaid in cheaper dollars.  Seeing this grim future, the world will gradually abandon the dollar as the stable reserve currency, and America’s last dominant power will be gone.

 

 

 

 

 

Bellwether election coming up -- One May race could tell it all

Bellwether election coming up

One May race could tell it all

 

Gordon L. Weil

Is he a good Republican?  

Reject Obamacare?  Check.   Close Department of Education?  Check.  Loosen gun control? Check.  Claim global warming is pseudoscience?  Check.  Balance the budget? Check.

That’s Thomas Massie, the Republican House member from Kentucky’s Fourth District.  He’s an 84 percent backer of President Trump, while Maine GOP Sen. Susan Collins, classified as a moderate, backs him 96 percent.  That makes him a despised rebel.

Trump backs a well-financed candidate challenging Massie in the May 19 primary.  The president now defines what it means to be a Republican and will tolerate no independence.  If successful, Massie’s rival could help end the president’s political heartburn.

The race comes down to Massie versus Trump.  It will be a test of Trump’s popularity among Republicans and if the traditional budget-balancing party, the classic conservative GOP, still exists and can make a comeback.  The district is solid red, so its vote will take the pulse of Republican support.

Massie, like Kentucky U.S. Senator Rand Paul, is a libertarian.  Like Paul, he is true to his beliefs and is closely aligned with deep conservatism.   Government should do less, a lot less, and sharply cut the mounting national debt.  If that means no aid to Israel, no Iran war, little foreign involvement, that’s all right.  Just not with Trump.

The primary represents a test for Trump of his own choosing.  He demands and usually gets total loyalty from GOP House members.  In the first year of his second term, Trump appeared to enjoy unlimited and complete power.  Massie’s opposition has mostly been annoying, though he led in getting some of the Epstein papers made public.  Most House Republicans treat him as a pariah.

But the corruptive force of Trump’s power is challenging his hold on the party and the country.

Part of Trump’s 2024 electoral success depended on his making inroads into traditional Democratic constituencies.  Some of his actions have harmed the interests of social and ethnic groups, which split to support him.  Their disappointment may now emerge as a barometer of his standing.  At the same time, Democrats who did not vote in 2024 may also rejoin their party.

His purification of the Republican Party by discrediting and defeating traditionalists pushes away potential supporters.   They have sustained his policies, but will they begin to respond to voter concerns and become more independent of Trump’s threats as the campaigns progress?  He should have cause for concern.

His failure to tame inflation, a major factor in his victory, affects middle-class voters who backed him because of his cost-cutting promises.

His attack on the pope and his self-portrayal as Jesus has aroused open opposition among religious conservatives.

His obvious discrimination against Blacks and women, beginning with the dismissal of the Chair of the Joint Chiefs, a Black, and the head of the Navy, a woman, has offended some in these large constituencies and may lead to increased opposition.

His abuse of the law by demanding the prosecution of his political opponents, going back to the 2020 elections, creates discomfort.

His indifference to Ukraine accompanied by his inexplicable Russian sympathies, his attempt to take Greenland from Denmark, an ally, and, contrary to his promise, his launching the Iran war without consulting Congress or American allies have all faced strong opposition.

His trade policy and his absurd desire to make Canada the 51st state has imposed new costs on American consumers and manufacturers.

His family’s unprecedented and open enrichment by benefitting from his policies and foreign friendships displeases people.

Taken together, these concerns have raised questions even among his core backers that he is losing mental acuity and focusing almost entirely on his personal reputation and legacy.  The prospects for the next two and a-half years are not positive.

If the Massie election reveals GOP disaffection from Trump, it could help elect traditional Republican backers elsewhere, enabling them to gain more influence.  In Congress, that could loosen Trump’s virtually total control and promote compromise.  Trump could be forced to deal with his skeptics and opposition.

Conventional wisdom is that the Democrats should hammer affordability and back away from more controversial issues favored by progressives.  Yet it’s possible that any Democratic vote, moderate or progressive, helps the party, because it is united in its opposition to Trump.

Increasingly, Trump is making himself into the 2026 campaign issue, above even immigration, taxation or Iran.  If Massie wins the Kentucky primary convincingly, that could signal a strong rejection of his MAGA politics.

Looming over this scene is the specter of Hungary’s landslide defeat of right-wing Premier Viktor Orban, who indulged in the same style of governing as Trump.  It would be an almost impossible stretch for the Democrats to gain two-thirds control of Congress as did Orban’s opposition, but they could put the brakes on Trump.

  

The last word on the law

 

The last word on the law

Courts or legislatures?

Gordon L. Weil

Who should decide if a law is constitutional?  The courts or the people?

This question does not exist only in an academic ivory tower.  As people increasingly see courts as partisan, it is a real issue.   A Maine case last week focused on it.

The American Constitution is silent on the issue, but the U.S. Supreme Court lost little time in asserting its authority.   It declared that it alone could conduct “judicial review” – deciding if laws are constitutional.  The highest state courts have done the same.

This ruling was authored by Chief Justice John Marshall, a member of the Federalist Party, which was dying.  By taking broad powers for the Court, he would be empowered to use his long tenure to support the Federalist view as a check on the rising Jeffersonian democracy.   Thus, from the outset, the Court was political.

While court decisions are supposedly objective and nonpartisan, it’s obvious that judges’ opinions often reflect their personal philosophy or the positions of the political parties that put them on the bench.  Pledges of neutrality may assure judicial independence, but not objectivity. 

Because judges have known ideological or political leanings, the courts inevitably take on a legislative role.  When they define what the law is, they may substitute their judgment for the lawmakers’ intent and become lawmakers themselves.

Court views may change over time, as when the Supreme Court reversed its earlier pro-abortion decision in Roe v. Wade, causing the public to see the judiciary as essentially legislative and not reliably objective.  As judicial rulings have become more controversial and apparently partisan, public support for the courts has been declining.

If courts become more like legislatures, should legislative bodies representing the people, not the judges, be responsible for deciding on constitutionality?   Two differing answers have come from two states, Maine and Alaska.

They both focused on  ranked choice voting, which modifies how votes are counted in multi-candidate elections, potentially eliminating a candidate winning simply by being “first past the post.”  In 2016, a Maine referendum launched it for federal offices and for state elections of governor, members of the House and senators. 

But the state Supreme Court ruled that the Maine Constitution requirement for election by a “plurality” prevented using RCV for state elections.  It cited the state’s troubled history involving a disputed election that had almost led to armed conflict as the reason for the requirement for a simple plurality.  The Legislature repealed the referendum result.  In 2018, a second Maine referendum approved RCV for federal offices and state primaries, but not for state elections.   

Two years later, Alaska voters narrowly approved RCV for both federal and state elections.  In 2022, the Alaska Supreme Court ruled that the Alaska Constitution, requiring “the greatest number of votes” to be elected, allows for RCV.   It attacked the earlier Maine decision for failing to take good election policy into account.  As in Maine, Alaska voters decided a second time on RCV, retaining it by a margin of 664 votes out of 340,110.

In a ruling last week, the Maine justices unanimously rejected Alaska’s unusually harsh criticism, and explained the detailed vote counting procedures laid out in the Maine Constitution, requirements that are absent in Alaska.

In Alaska, the will of the voters, expressed by a slim majority in a referendum, dictated the Court’s determination of what the State Constitution meant.  The Court concluded that RCV is constitutional, based on its political judgment of the “State’s interests in allowing voters to express more nuanced preferences through their votes….”

In Maine, RCV proponents asked the Court also to follow referendum results and its successful use in the state’s elections for federal offices.  The justices would not agree, finding that the Constitution’s definition of “vote” in state elections means the ballot cast by the voter that must be counted in their municipality, which precludes RCV.

In the U.S., the highest court, federal or state, usually decides on the constitutionality of laws.  In Britain, without a written constitution, the Supreme Court accepts Acts of Parliament as being constitutional.   In the RCV rulings, Maine had retained its traditional judicial review authority, while Alaska deferred to a referendum, a legislative act, leaning toward the British model.

Because American courts, with unelected membership, are increasingly seen as legislative bodies, adopting the British system of allowing the elected legislature to decide on constitutionality might seem to be a realistic alternative.  But there’s no chance of dropping judicial review. 

A hybrid solution could allow court decisions on constitutionality to be overridden by a legislative body, voting by a super majority vote within a fixed period after the court’s ruling.  Marshall’s concept of judicial review is not included in the U.S. Constitution, so this change could be made by law.

Trump is above the law

Trump is above the law

Enforcement is elusive

 

Gordon L. Weil

He broke international law!  He violated the Constitution!

Angered and frustrated by his actions, some of President Trump’s critics and political opponents utter these words.

So what? 

Nothing changes, largely because Trump firmly believes that he is smarter than his opponents and acts within the sweeping immunity the Supreme Court gave him two years ago.  His 2024 election victory makes him an all-powerful president.    

“Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior.  It is a fundamental aspect of any civilized society, providing the framework within which individuals and entities operate,” says a widely recognized definition.

Trump has said, “I don’t need international law.”  When asked what he would rely upon, he answered, “my own morality, my own mind. It’s the only thing that can stop me.”  Does international law apply?  “It depends on what your [my] definition of international law is.”  

These days, charges fly that Trump violates international law when he threatens Iran, writing, “A whole civilization will die tonight, never to be brought back again.”  It is easy to claim that threat violates international law, but where’s the enforcement?  While international courts exist, the U.S. has not accepted them for most matters.

International law is a collection of formal agreements and widely accepted customs that are meant to “regulate behavior” among nations.  The formal agreements, usually in the form of treaties, obligate the countries that have ratified them.  The customs are determined by their long-term use by a great many nations.

The obvious enforcement mechanism is self-interest.  For example, if a nation does not want foreign vessels within 12 miles of its shores, its boats will not venture that close to the shores of other countries.  Behind that rule is the possibility a coastal state will sink foreign vessels within the limit, an undesirable choice because of its potentially disastrous consequences.

That rule may take the form of a treaty, as it has. The U.S. has not ratified that treaty, but most major countries have.  Not the U.S., which, like China, may ignore it.

In the U.S., a government of laws is replaced by the will of a single person.  The form of government becomes elective authoritarian.

His warnings about leaving NATO become credible.  His threat to erase Iran’s civilization is credible.  Quitting an alliance or exercising coercion, both banned by treaties ratified by the U.S., is not lawful, but he believes he can do it.

If he pursues this belief, the international order fails, at least as far as the U.S. is concerned.  Allies will not support the U.S.  Ultimately, other countries could undertake economic retaliation and refuse to enter other agreements with the U.S.  He provides an incentive for other countries to use the system for their own relations, eventually isolating the U.S.

Trump believes that the U.S., with the foremost military and largest economy, can dictate its terms to the world.  But new trade agreements being reached among other countries and refusals by historic allies to fully back the U.S. in Iran are signs American power is weakening.

Ratified treaties are part of American law that should not be violated, as are the laws enacted by Congress. Yet Trump has often overridden “the supreme law of the land” without suffering any consequences in the U.S.  He can ignore the law in favor of his own “morality,” because his compliant party controls Congress and like-thinkers sit in the Supreme Court majority.

In the absence of court disapproval and congressional independence, he faces only two formal enforcement tools against unlimited power.

Two-thirds of both houses can suspend the president upon the recommendation of the vice president and a cabinet majority. Two-thirds of the Senate can remove the president from office after impeachment by a House majority.  These are drastic and disruptive procedures, unlikely to be used.  Still, Trump fears a third impeachment, which is possible. 

A congressional majority that will exercise control over presidential actions would reflect a national popular sentiment that Trump’s discretion must be limited.  Yet it is extremely unlikely that enough new senators would be elected to provide the two-thirds needed to overcome a presidential veto. 

But either house could reject presidential proposals, including for spending on military operations.  And an opposition majority could deal with the president, approving presidential initiatives in return for concessions or modifications.  This is governing through compromise, just what voters supposedly prefer and as the Framers of the Constitution intended.

In the final analysis, unchecked presidential power has become likely and easy.  Enforcement of the law to force presidential compliance is complex and difficult.  The problem is not about policy, but about process.  The solution comes in electing presidents willing and wise enough to submit to the constitutional process. 

Trump's last gasp?

Trump’s last gasp?

Helping MAGA survive

 

Gordon L. Weil

Donald Trump believes that he is exceptionally qualified to carry out a mandate to reshape America according to his own vision.

Above all, this mandate allows him to exercise personal and virtually absolute control, not only over the federal government, but over a myriad of aspects of national life.  Accomplishing his mandate, he could fulfill his claim to be the GOAT – the greatest of all time.

He runs the risk that original constitutional processes will frustrate his mandate.  The most basic are the elections that choose the president and Congress.  He devotes much attention to undermining elections with false fraud claims and attempts to suppress voting, but he cannot erase them.

As the congressional election year grinds on, threatening at least the GOP House majority, he is compelled to make an extreme effort to achieve his goals.  The elections might produce a Democratic majority that could thwart his hopes.  Or they could produce Republican victory, reaffirming his vision.

He must achieve his MAGA ambitions quickly.  If he faces rejection, and this is his last gasp in November, he must accomplish all he can now.   If the voters approve of his efforts, his two lame duck years will be transformed to give him the third term powers he has coveted.  Either way, between now and November 3, the public can expect his all-out effort to achieve his goals.

While observers focus on the Iran war’s impact on affordability and foreign relations, Trump may see winning the war and destroying as much as possible of Iran’s dangerous regime as being key to an eventual recognition of his greatness in dismantling a potential nuclear threat.  That may be why he presses on.

In misunderstanding NATO, he may be forcing the alliance to update itself.  Europe will be better able to defend itself, becoming more independent of the U.S.  Trump assigns himself credit for inducing the Europeans to play a bigger role; he lauds himself for military budget increases among America’s allies.  He scorns allies for not doing his bidding and now targets NATO.

Trump obviously sees the armed forces as a major tool in exploiting American power to bring change to the world and the use of the threat of war as a believable and acceptable policy.  His easy but limited success in Venezuela has obviously been intoxicating and encourages him to try to duplicate it.   Cuba is a tempting target, and he will press on in seeking others.

In the process, he and Pete Hegseth, his amazing and alarming choice to lead the armed forces, reshapes the military.  Without regard to morale and readiness, they are stripping high command of women and African Americans. Hegseth believes such people are promoted simply because of their sex or race, and will continue to pursue military ethnic cleansing until yearend.

Trump sees federal judges as political, not judicial, officials.  He reflexively attributes his court defeats to liberal judges.  If Congress flips in November, he will not be able to put his backers on the bench.  Thus, it reasonable to expect a rush to get his nominees confirmed before the elections. 

Executive orders, questionable legislating by the executive, will continue to cascade. Trump can be expected to kill as much regulation that remains as possible, especially any surviving elements of environmental or financial protection.  As needed, he will tighten his control of supposedly independent boards.

While U.S. dependence on certain imports could moderate his tariff policy somewhat, he seems determined to press ahead with it.  He uses tariffs in the same way as he deploys military forces, as a demonstration of the America power at his disposal.  In both cases, his preoccupation with power obscures the ability to appreciate unintended consequences.

Trump’s unyielding pursuit of his agenda is bringing two reactions that increasingly call his insistence into question.

Europe, Canada, Australia and others are becoming increasingly critical and more independent of the U.S., which was accustomed to working with allies, even if it had the greatest force.   When Trump says the U.S. can go it alone, he pushes other countries into new relationships and reducing ties with it.  American power decreases, opening opportunities for China. 

The other factor is the gradual erosion of his support among some congressional Republicans.   Trump has taken over many congressional powers with GOP majority backing.   Despite being responsible for their own loss of control, some members slip away from him and others leave Congress.  Democrats expect usual mid-term election gains and maybe more.

Congressional races have become national elections.  Because of Trump’s sweeping and bold actions and the relatively minor influence of Congress, the election unavoidably becomes a decision about him. 

Trump finds himself in a political spotlight of his own creation.  Win or lose, perhaps that’s what matters the most to him. 

America against itself

 

America against itself

Can the experiment work?

 

Gordon L. Weil

The November congressional elections are widely seen as a referendum on President Trump. 

Will a divided country approve his presidency or try to restrain his actions during his last two years in office.   The choice may turn out to be about the kind of government Americans now want.

In his first Inaugural Address, George Washington said that “the preservation of the sacred fire of liberty, and the destiny of the Republican model of Government, are justly considered as deeply, perhaps as finally, staked on the experiment entrusted to the hands of the American people.”

The age of reason had led to the creation of a republican form of government with power ultimately in the hands of the people.  Breaking with centuries of royal rule, the American system was an “experiment.” 

Ancient thinkers had argued that government by the people would fail.  It could be subverted by a public whose interests and values turned elsewhere, poor leadership, decadence and foreign enemies.

But Americans gradually gained confidence that the experiment could succeed, though two events – the Civil War and the Great Depression – forced restarts in the process.  For almost a century, American history has moved slowly toward making the experiment successful and the model for the world.

In the past 33 years, five presidents have each produced an historic achievement that was evidence of the nation’s continual, if unsteady, progress.

President Bill Clinton led the nation into a period of domestic prosperity and Pax Americana, the maintenance of global peace under its influence, to a post World War II high point. 

President George W. Bush undertook educational reform, expanded Medicare by adding prescription coverage, and made the U.S. the world’s leader in fighting AIDS, a disease that threatened millions.

President Barack Obama symbolized equality and led the creation of a national health insurance program – the Affordable Care Act – that opened medical care to millions who previously could gain only emergency room attention. 

President Donald Trump, faced with a stunning worldwide pandemic, took swift and bold action to encourage the rapid development of Covid vaccines, providing both reassurance and recovery to millions. 

President Joe Biden developed a massive public works program to reverse the downward course of the economy resulting from the Covid pandemic and initiated the largest U.S. effort ever to slow environmental degradation.

None of these presidents was immune from controversy or error, but the system worked to produce progress.

Despite this halting progress, an increasing number of people have come to believe that the government was not working for them.  The representative form of government did not yield an economy in which they could prosper or health care that provided adequate protection.  They see a government responsive to special interests and not to them.

Faith in the American experiment faltered.  Perhaps a strong leader, brushing aside the checks and balances inherent in that experiment, might be better able to produce results.  Donald Trump promised that he could, and a majority of voters accepted those promises.

In the first year of his second term, Trump reversed or drastically reduced virtually all the major accomplishments of recent presidents.  Their aspirations and the normal processes of the America government were replaced by the will of a single person, relying on a single election victory.  The institutions of the federal government yielded to authoritarian innovation.

Democrats, opposing this change, seek to recover their role, presumably believing that they can restore confidence in the American system, because Trump is an aberration, benefitting from frustration that their party can overcome. 

Liberals are convinced their analysis is correct, and the country will come to its senses and return to constitutional traditions.  They fail to understand that MAGA believers are similarly convinced that their view is correct, have written off the experiment and prefer authoritarian rule.

Neither side shows confidence that they represent a strong majority of the people.  The Democrats are split between moderates who believe the country can be put back on track and progressives who want to move the track.  Failure to reconcile this major difference could undermine their chances of regaining power.

The Republican Party is dead, replaced by MAGA partisans, Republicans in name only, who reject the party’s traditional positions on the environment, the economy and public spending.  This GOP tinkers with voter access, trying to cling to office. 

It would be reasonable to conclude that “it must get worse, before it gets better.”  At that point, the people would decide if the experiment can be pursued or if the country reverts to authoritarianism, the historic default.  The alternative to both is chaos.

By imposing his values, cancelling programs, closing agencies, and taking the nation to war, Trump makes his case for ending the experiment.   He may force voters to make their choice on the ballot in November.

Trump threatens total war against Iran

 

Trump threatens total war against Iran

Risks a major conflict

Gordon L. Weil

The U.S. threat to bomb Iran’s electric power plants is an expression of “total war” – a conflict waged against civilian populations.

Total war includes operations going beyond military targets and aimed at harming or killing civilians who are not combatants. Its goal is to turn people against their own government, making them into allies, however unwilling.  They are expected to force their leaders to surrender, bringing people relief from their danger and suffering. 

History up to today is full of examples of the resort to total war.

In 2022, Russia attacked Ukraine.  Russia obviously wanted to turn Ukraine into its satellite, based on Putin’s belief that Ukrainians are really Russians.  He expected an easy victory with the population welcoming Russian control.

Total war can produce an opposite result from what was intended.  Instead of promptly surrendering, Ukrainians revealed a fierce commitment to their country’s political and cultural independence from Russia.  They would pay for their new-found patriotism by having their homes and power plants destroyed. 

Restrained by its American and European backers, Ukraine cannot respond in kind.  But its popular support produces strong resistance, imposing a high cost on Russia.   Russia’s total war strategy may be beyond what it can afford, and it looks likely to fail.

The 2024 Hamas terrorist attack on Israeli civilians was clearly intended to reveal the price Israel would be forced to pay for its Palestine policy.   Innocent civilians were killed, and Hamas took hostages, a move out of the Middle Ages.   If it had more than sheer terrorism as a goal, it might have expected fearful Israelis to pressure their government to alter its policy.

Instead, the country unified by attempting to eliminate Hamas.  No room was left for negotiations.  But Israel, too, resorted to total war.  Without offering evidence, it alleged that civilian institutions, including hospitals, were Hamas bases.  Its attacks were aimed at turning civilians against Hamas, which exercised absolute administrative and military control.

Ultimately, Israel shifted to the all-out destruction of Gaza.  Its actions went far beyond punishing Gaza and extended to an assault on innocent Palestinians there, presumably because they had accepted Hamas domination.  Total punishment was the product of total war.

Last week, Israel extended its total war strategy to Lebanon.  By evacuating hundreds of thousands from the south and bombing Beirut, it seemed to be trying to get the Lebanese to turn against Hezbollah and expel it.   To achieve this objective, it invaded a country with which it is not at war.

In the Iran war, both the U.S. and Israel have said they want regime change.  Based on previous anti-government demonstrations, they seem to believe that they can create the conditions for a successful uprising by attacking civilian life.    UN Human Rights Chief Volker Türk reports that aerial attacks increasingly focus on areas in Iran that are densely populated. 

Iran has closed the essential oil supply route at the Straits of Hormuz.  To retaliate, Trump would engage in total war.  The principal victims of an American attack on electric supply would be civilians and institutions like schools and hospitals that depend on reliable power.   Iran would retaliate against civilian installations in Middle East countries aligned with the U.S.

Total war is not traditionally a part of American policy.  In World War II, the U.S. would not engage in British-style area bombing at night, clearly designed to demoralize and harm civilians, but instead used precision daylight bombing of military targets.

Contrary to this American policy, the U.S. would now resort to total war. Even more worrisome, with Israel, it would extend this war over a wide area with the risk that its scope could not be fully limited.   This is how regional conflicts can become major wars.

Trump once criticized Ukraine President Zelenskyy, claiming that he had started the war with Russia, because he refused to turn over land Putin demanded.  He said, “Listen, when you start a war, you got to know that you can win the war, right?”

Attacking Iran, Trump said, "What we did in Venezuela, I think, is … the perfect scenario."  Iran could be a quick victory, producing a government acceptable to the U.S.  Then, he discovered his belief in a short war and easy victory was overly optimistic.

Instead of returning to negotiations, Trump escalates the war.  His frustration has led him to the brink of total war and to the possible unpopular and dangerous deployment of American ground troops.

As the war deepens, so do economic problems in the U.S. and elsewhere, and political concerns grow among his own backers.  He needlessly alienates European allies by criticizing their insufficient support, when they might have helped give him cover in backing off the war.

Whatever the embarrassment, Trump needs to quickly find a way out.  Total war must be off the table.

Trump’s mythical mandate for war

 

Trump’s mythical mandate for war

‘Unprecedented’ victory?

 

Gordon L. Weil

President Trump justifies his broad assertion of authority to wage war against Iran or abolish entire agencies of government by his election victory claim that “America has given us an unprecedented and powerful mandate.”

He sees his supposedly crushing victory as authorization by the American people of his exercise of extraordinary powers.  Or he knows that his win was not particularly unusual, but believes that he can spin the result by boldly asserting a false claim.   Then, it’s carpe diem – seize the day – and make the most of your opportunity without much thought for the future.

That explains the Iran war.  He thought he could win quickly and did not worry about the long-running economic crisis that his war could create

Karoline Leavitt, his highly promotional press secretary, touted that, “the American people gave President Trump an overwhelming mandate.”

That he could live off his self-proclaimed mandate came from the acquiescence of intimidated congressional Republicans.  “We have taken back control of the Senate. Wow, that’s great,” he proclaimed post-election.

In short, his presidential actions, ignoring historic constitutional practices, are justified by the “unprecedented,” “powerful” and “overwhelming” mandate he received.  

Something is “unprecedented,” when there is no previous example of it.  Implied in his claim was that his victory was by the largest margin ever and that he swept his party into unusually taking control of both houses of Congress.    

What are the facts about the mandate that is the basis of his power?

● Margin of victory.  In 2024, Trump’s popular vote margin was the smallest since 1968.  In the 13 elections over the 52 years beginning with the 1972 contest, no margin of victory in the popular vote had been as narrow as his in 2024.

● Congressional coattails.  A presidential winner being accompanied by the congressional victory of his own party has happened six times since the 1980 election of President Carter, including Trump’s own 2016 election.  Only one of the six retained his party’s congressional majority in the following mid-terms: Carter in 1982.   So, the Senate win was virtually routine.

● The Trump world interprets his 2024 election as an act of the “American people”.   His win did not produce an “overwhelming” or “unprecedented” result, and it was hardly the voice of the American people?  Here’s the data.

            Citizen population aged 18 and older      236 million

            Registered voters                                     174 million     73.6% of total 18+ population

            Voters                                                        154 million    63.7% of registered voters

            Voted for Trump                                          77 million     49.8% of voters

Among all citizens 18 and over, Trump received 32.6% support.

● Number of votes.   Trump did not achieve the greatest number of popular votes for president; Joe Biden did in 2020. 

● Electoral vote.  Presidents Reagan, Clinton and Obama (twice) had bigger electoral vote margins.

The claim that Trump won unprecedented, overwhelming support from the American people is false.  He clearly won the election, but he has used his appraisal of the result as authority for the virtually unlimited use of presidential powers, as he understands them. 

Further, the voters who supported him count as the American people; everybody else is not.  He says he “hates” those who did not support him and misuses his power to go after them.

His four-year mandate misrepresents the political will of a plurality of voters, expressed through an election on a single day.   Their political act, misrepresented by him, can only be reversed or confirmed through political action.

One alternative would be impeachment by the House and conviction by the Senate.   Trump fears impeachment for a third time, which indeed would be unprecedented. 

He strives to retain control of the House, though his methods involve unusual mid-census redistricting and an ongoing effort to reduce the electorate by false claims of fraud.   He must win in the House to prevent impeachment.  This may be a tough challenge given his unpopularity in the polls.   

If impeached, he is unlikely to be convicted in the Senate.  That would require the votes of 67 senators, and that could only result from a huge landslide defeat for the Republicans.  GOP senators would be unlikely to break ranks.   It’s inconceivable that there would be enough Democrats and Independents next year to produce the majority needed to convict.

Still, the alternative could come at the ballot box in November.  The congressional elections emerge more as a referendum on Trump than as a routine collection of partisan, local contests.  The Democrats could take control of the House (likely) and perhaps also the Senate (increasingly possible).

Seats can flip if voters want to impose limits on Trump’s powers and to shift Washington’s focus to affordability issues.  Or they could confirm that they want more authoritarian rule.  Either way, Trump might then learn the true extent of his mandate.