American justice becoming pure politics

Gordon L. Weil

A group of state attorneys general, all Republicans, decide to go to federal court to block the actions of then President Biden.

A group of state attorneys general, all Democrats, decide to go to federal court to block the actions of President Trump.

They can go to a federal district court anywhere in the country and try to get the judge there to issue an injunction halting the president’s moves.  Better yet, they hope to convince a district judge, no matter how small or remote their jurisdiction, to make that injunction apply across the country. 

That’s often called a nationwide injunction.  Its prime characteristic is its effect on non-parties to the specific case that would be similarly affected by the president’s action.  These non-parties are usually the states that are still on the sidelines, which may be the president’s supporters.

In filing the case, the complaining states can select the district court where they will begin.  They look for a court where the likelihood of finding a judge favorable to them is the highest.  Judges may be selected at random for new cases, so the states look for the smallest pool with judges that share their politics or philosophy.

That’s called “judge shopping” or “forum shopping.”

For the Republicans, the desirable court may sit in Amarillo, Texas, or Fort Pierce, Florida. Each of those courtrooms has only one judge.  In Florida, it’s Aileen Cannon, who always does Trump’s bidding. 

For the Democrats, that may be the court, consisting of three judges, in Providence, Rhode Island.

Of course, the losing side will take an unfavorable district court decision to the Court of Appeals.  There, random selection of a panel of three judges does not assure approval of the district court ruling.  Still, the political orientation of a majority of the relevant appeals court judges may be similar to that of the district court judge.

Politics play a strong role in the nomination of judges. Of course, a president will seek to name judges who share their political views.  Presidents traditionally rely on the input or approval of a state’s U.S. senators in making nominations in their states.

Decisions by Courts of Appeal are likely to be appealed to the Supreme Court, when they involve states disputing presidential powers. Even there, the political orientation of the justices and of the presidents who nominated them may give that highest court a political hue.

It has become usual to see the justices referred to as conservatives or liberals.  They may claim that they merely follow the law, but the law itself must be interpreted, and individual judgments may reflect a justice’s political views.

The Supreme Court is increasingly facing cases involving presidential or executive branch powers.  The public’s need for prompt action and executive pressure has led the conservative-dominated Court to use procedural orders, the so-called “shadow docket,” to make more rapid decisions. 

That process can often allow for rulings with little or no explanation of the Court’s reasoning.  In this situation, it may be influenced by the previous course of the case as it came through the judicial process. Conservative district court decisions, even if they must be modified, percolate upwards.

The Supreme Court has come to make many fewer rulings each session. At the same time, it has given itself an essential role in sorting out questions about the president’s powers.

Will the Court act along partisan lines or try to keep to the law as it has previously been understood?  Trump and his backers count on its ultimate approval of their new views.  Justice Amy Coney Barrett, appointed by Trump, voted against his position in a recent procedural order.  She has been the target of bitter attacks by Trump backers.  They have also called for the impeachment of district court judges who oppose Trump positions.

More district court judges are needed, but new slots have been blocked by partisan warfare.  While the presidential campaign was under way, House Republicans refused to approve badly needed new slots.  After Trump won, they voted for enlargement.  President Biden then vetoed the bill, and no new judgeships were created. 

This was a rare case of the Democrats playing by GOP rules.  But the judicial system suffered because of such partisan tussles. 

The conservative Supreme Court was tilted to the Republicans by Senate GOP maneuvers.  Yet Biden and the Democrats refused to consider enlarging the Court, when they could. 

All the attempts to influence the course of the American political system through judge shopping and nomination games may now have their effect on whether any real limits are placed on Trump’s broad assertion of control.

The last word may belong to judicial partisans as the president pushes his powers and Congress collapses.

 

 

 

 

U.S. leadership of the West ending

Gordon L. Weil

The U.S. is like a nation at war.

The federal government is on the attack, deploying the power of the American economy and military to force other nations, states, the media and even citizens to follow the orders of President Trump and his agents.

This brutal campaign would reshape the economy and transform the world order.  It might also replace the American democratic republic with an authoritarian regime.

The end of economic, political and military systems on which many have relied results from the abuse of the awesome powers that Congress has given the president in the naive belief that custom would limit his exercise of them.

The Declaration of Independence states that it was issued out of a “decent respect for the opinions of mankind.”  The actions of the president in the few weeks since his inauguration has shown no such decent respect for the opinions of anybody who differs or objects. 

It would take only a few people to bring the government back under constitutional control.  If even a small number of Republicans in Congress joined with the Democrats, they could pass veto-proof laws to recover from the president the overly broad emergency powers he exercises.  If not, the GOP will share responsibility for Trump’s excesses.

The election certainly produced an administration determined to break with the traditions developed since World War II.  Trump always claimed that was his intent.  But his electoral majority did not give him a blank check to destroy America’s place as world leader or its system of balanced government.

He has routinely abused the congressional grant of emergency authority to take sweeping actions on tariffs and other matters that normally should be handled by Congress.  He has embarked on raising tariffs on imports from virtually the entire world based on a disastrously incorrect understanding of economics. 

He sees normal trade relations as warfare. If purchases from another country exceed sales from the U.S. to that country, for him the net exchange amounts to an intentional and hostile attack on the U.S.  He uses tariffs to raise import prices, and believes foreign suppliers will pay them.  Revenues from tariffs will increase.  Higher import prices will create competitive conditions for U.S. industry, which will prosper.

Other countries have not produced favorable trade balances intending them as hostile acts against the U.S.  Their advantages may come from paying labor too little or damaging the environment.  Higher American tariffs won’t fix either of them, and Trump doesn’t seem to care anyway.

The ultimate absurdity of Trump’s trade policy is slapping high tariffs on imports from Canada, a hostile act that will damage its economy.  Why?  Under a deal Trump made, most trade both ways is duty free. The American trade deficit in goods is more than offset by surpluses in trade in services and investment flows.

He charges without evidence that Canada allows floods of illegal immigrants and fentanyl into the U.S.  People on both sides of the border are bewildered about his real intentions.

He wants Canada as the 51^st state.  Canada, with an economy the equal of Russia’s and composed of 10 state-like provinces, has no interest in national suicide. If Canadians remain unwilling, he would coerce them by using American economic power.  Is that what an aging American president sees as his historic achievement?

He would treat Canada as a mere satellite, and just as he does Ukraine, a nation invaded by and at war with Vladimir Putin’s Russia.  Trump wants to be a peacemaker, with an eye on the Nobel Prize.  No matter that he would sacrifice Ukraine’s land and security for his dealmaking with Putin, whose favor he clearly seeks.

European countries, which share Ukraine’s worries about future Russian aggression, get in Trump’s way.  They embrace President Zelenskyy.  It may have pained Trump to see him received at King Charles’ private residence, just after Trump had received a royal invitation for a state visit.

When a group of European leaders met in London to plan their help for Ukraine, Canada’s prime minister, having turned away from the U.S., was among them.  For the sake of making a deal, Trump is losing American leadership of the West.

The Europeans cling to the belief they need American backing to defend Ukraine and to pursue a lasting peace and not merely a headline.  They must gear up, but meanwhile they could rapidly deploy major support.  Britain once faced Hitler alone, while the original America First movement kept the U.S. neutral.  Europe now needs its own version of Winston Churchill.

In this column, I try to make fair judgments, pro and con, about Trump and the Democrats.  I will continue to do so.  Now, it is necessary to speak out about Trump as he becomes increasingly dangerous, even to the freedom of the press. 

Powerful president tests legal system

 

Gordon L. Weil

President Donald Trump singled out Maine Gov. Janet Mills to ask if she would comply with his executive order on transgender athletes.

“I will obey state and federal law,” she replied. 

“Well, I’m ...We are the federal law,” he told her.

 “See you in court,” she replied.

Trump concluded that he would win easily and taunted Mills, suggesting she has no future in politics.

Contrast Trump’s remarks with John Adams’ 1780 definition of the American republic as “a government of laws, not of men.”  Adams was later the second president.

Trump’s view follows his earlier statement that “Article II [of the Constitution] allows me to do whatever I want.”  The president is redefining his role.  If that holds, then check and balances among Congress, the president and the courts are dead. 

The avalanche of executive orders issued by Trump has raised at least two major issues, and both will inevitably end up in court. 

Has the president taken on powers that, under the Constitution, belong to Congress? 

Can the president selectively veto congressional spending by closing or reducing federal agencies or programs through forced staff cuts?

Trump may be encouraged by two factors.  First, he won the election.  His representatives claim that the majority vote victory gave him a mandate to carry out every promise or proposal he had made in the campaign.   This electoral endorsement would amount to a sweeping legislative act, making irrelevant both Congress and the courts.

The other support for Trump’s assertion of power comes from the Supreme Court decision in Trump v. U.S., issued last year.  The Chief Justice, on behalf of the Court, wrote, “the system of separated powers designed by the Framers has always demanded an energetic, independent Executive.”  The Court’s ruling implied that the president could defy Congress.

Presidential executive orders might amount to federal legislation that ordinarily would be under congressional control.  If Congress is dominated by the president’s allies, his solo lawmaking may go unchallenged.  Historically, limits on presidential lawmaking have resulted from the president’s need to compromise with a skeptical Congress, but that’s missing these days.

In the end, presidents may be lawmakers, but Trump is not the law.  The Supreme Court long ago made itself the judge of what the law is.  It can decide that, while Trump could issue an order, it cannot violate the Constitution or existing laws.  Mills implied that Maine could prevail in Court, possibly because Trump had ignored the powers that states lawfully retain.

Acting mostly through Elon Musk, who holds a temporary government position, the Trump administration has tried to shut down the U.S. Agency for International Development and to terminate or reduce federal government programs.  These actions came swiftly, stunning both federal workers and the private sector.

Presidents may dismiss federal employees, provided they respect employee rights set by law or labor contracts.  Musk may be using his business practices to dismiss people under an approving president, but it is doubtful that the Court has yet allowed presidents to go as far with public employees as Musk demands.

These firings amount to an “item veto,” by which a president can block a portion of spending that has been ordered by law.  Trump is not alone among presidents in wanting to have this power.  This move is called rescission and for 50 years it has been banned by law.  President Bill Clinton tried it, and he was overruled.

Just as Republican state attorneys-general brought cases against Biden policies, Democratic AGs are now lodging many legal challenges to Trump.  The courts have begun acting and mostly trying to stick to the law. That means both Trump and his opponents can win procedural points, but the full story has just begun to be written.

Former Maine AG and Harvard Law School lecturer James Tierney claims that the state AGs play “a vital role” in challenging the president.  But, he says, they know that “Donald Trump is the President of the United States.  They are not going to sue their way out of it.”  Plus, congressional Republicans can continue to allow Trump unchecked power.

Trump’s treatment by the same Supreme Court that accepted his assertion of power will be the most important test. Will it impose any limits on his actions and Musk’s?  If it approves his moves and appears partisan, a constitutional crisis caused by his view of presidential power will have arrived.

If it overrules Trump, some of his supporters say the president should ignore unfavorable court decisions.  He should rely on the almost unlimited power given him by the voters in 2024.  If he disobeys the courts, that would also bring the ultimate crisis.

James Harrington, a British philosopher, wrote in 1656: “The empire of laws is concerned with right; the empire of men, with power.”  Which do American voters want?