Democrats seek an identity

 

Gordon L. Weil

The Democrats lost the last elections.  They remain lost.

Who are they?

Right now, they have a split personality – at least in three ways.

The first group, which includes most congressional Democrats, believes the party was doing well before Trump’s comeback.  The Affordable Care Act, infrastructure spending, slowing inflation, low unemployment and attention to marginalized people all seemed to be reasons for satisfaction.

On the economy, the Democrats were vulnerable, not having made their case.  National numbers were good, but at the individual level, a combination of frustration and misunderstanding remained. 

They also ignored broad national concern about a seemingly unchecked flood of immigrants.  They failed to understand that many Americans were deeply worried that their powerful nation could not control its borders or might not even want to limit unauthorized immigration.

The Biden administration’s focus on issues like sexual preferences, aiding the victims of discrimination, and even repaying college loans did not resonate with working people harmed by inflation and discontented with an unresponsive government.  Some voters saw Biden focusing on marginal problems and not on their concerns.

The Democrats unwisely took for granted the support of such people.  Their lack of seriousness about inflation was evidenced by the naïve pronouncements of candidate Kamela Harris. The party demonstrated an overblown sense of pride in its agenda and accomplishments and incorrectly believed that the Democratic platform was popular.

What they saw as their success bred overconfidence.  Proud of their achievements and aware of the first Trump presidency, they were confident they could win.  But first they had to recover from the problems created by Biden’s prolonged attachment to his belief that he was the best suited to defeat Trump.

In the end, they misread the electorate.  Many people had lost faith in government and, as they had since the 2008 election, demanded change.  Good or bad, what the Democrats served up was more of the same, not change. 

The aging cohort that pursued that course still makes up much of the congressional Democratic contingent.  They are led by Sen. Chuck Schumer, who fails to project the image of a renewed party.  Lacking an alternative agenda, they allow Trump, still smarting from his 2020 loss, to keep running against Biden.

The second face of the Democrats are the progressives led by Sen. Bernie Sanders and Rep. Alexandria Ocasio-Cortez.  They campaign across the country, arguing that the Democrats can only win with policies rejecting the demands of billionaires, which come at the expense of average people.

In short, if the GOP has gained by going right, marooning traditional Republicans, the Democratic Party would gain by going left and either dragging traditional leaders along or dumping them.  Copying Trump, one young party leader wants to run progressives against older, establishment Democrats in congressional primaries.

Their platform may emphasize the issues that led many voters to believe that Biden focused on marginal groups. Their complaints against “oligarchy” may be too abstract.  But they make a strong case against Trump’s unconstitutional and illegal actions.  They encourage sorely needed party activists.

The progressives openly stage a challenge to establishment Democrats, whose incumbency can be used to defeat their more liberal agenda.  Open primaries between the two sides are unlikely to swing the party, and winning progressives could be markedly more liberal than the general electorate.

The third Democratic component are the pragmatists, considered to be moderates.  They want to produce solutions that are more practical than ideological.  They may agree with Republicans when they reach similar solutions and avoid knee-jerk partisanship.  That could have political appeal.

The pragmatists respond to concerns that the party may appears too “politically correct,” labeled by Trump as “woke.”  They understand that some voters worry the Democrats have become more responsive to the desires of the elite than to the needs of blue-collar workers.

As a result, they support policies to bring immigration under control, to update trade rules to redress relationships with other countries, and to simplify regulation to spur economic growth.  These positions may align, at least to some degree, with the GOP.

But they remain strongly opposed to Trump’s methods that override checks and balances by ignoring Congress and the courts.  They back efforts to prevent discrimination and to recognize the values of a diverse society.

They lack a single voice, but California Gov. Gavin Newsom seeks the role.  It remains for him and others to win over establishment Democrats and progressives.

Democratic policy favors more government.  Republican policy demands less government. Is a pragmatic policy of “some of each” viable?

Whatever the solution for the Democrats, if they expect to halt Trump by prevailing in the 2026 congressional elections, they must find common ground and a common voice – and soon.  Otherwise, by leaving their current struggles unresolved, they will become responsible for more Trump rule.

 

Trump's personal presidency

Gordon L. Weil

Trying to figure out Donald Trump may be the prime American indoor sport.  His barrage of new policies has left people trying to figure out their president. 

Some see him as a great deal maker. Others see him as erratic.  Still others may believe he is not completely sane or that he is sliding into senility.

What do we know about him?

His goals are reasonably clear: (1) restoring American manufacturing by making imports more costly, (2) reducing regulation to improve corporate profitability and boost the economy, (3) ending “woke” policies, (4) cutting the size and functions of the federal government and (5) blocking and expelling illegal immigrants.

Each of these goals has its supporters, creating the coalition that backs him, but his unpredictable methods have raised concerns even among those backers.  His methods may do more harm than the good his supporters see in his goals.

Here’s a look at his policies and actions to see who Trump really is.

He focuses on the immediate, the short term.  Raise tariffs, change policies, shut agencies. Do that now.  That can produce surprise and quick results. It may be the way a newly elected president can best take advantage of his election victory.

But this almost impetuous style means that he ignores history’s lessons.  He does not understand why Ukraine won’t simply quit the war Russia started and end the bloodshed.  He has learned that other presidents favored high tariffs, but seems unaware of the disastrous effect of those moves.

By acting quickly, he ignores side effects.  His tariff policy might boost domestic production, but that takes time while tariffs take effect immediately.  Meanwhile, the economy will slow, prices will rise and markets will weaken.  He suggests that life will be painful for a while, ignoring the short-term effects on middle income and elderly people.

Though proud to be considered a great negotiator, he makes concessions to Russia, while gaining little from it in return.  He accepts the demands of the Russian aggressor and tries to pressure Ukraine, the victim, to surrender. 

He uses the economic tools at his disposal to force others to accept his views. Maine has only two trans students in high school sports, but he wants to cut off all federal funding to the state unless it outlaws the policy making that possible.

He is insensitive to intangible values.  He seems not to understand that his policy would strip Ukraine of its sovereignty, to him an abstraction compared to a ceasefire.  Similarly, attacking universities, he shows no understanding of academic freedom.  In both cases, he ignores the values and history of those he would control.

He reveals human traits.  He bullies those he would control.  He retaliates, using his government powers, against those he sees as past opponents, from government officials to law firms.  He persists in falsehoods that support his policies, even after being confronted with hard facts.  He is heedless of the concerns of others, even major allies.

He is president of the greatest power in the world, but he still craves acceptance in the select clubs of the rich and powerful.  He likes to associate with fellow billionaires and with national leaders who can wield dictatorial powers. 

At the same time, he continually and immodestly asserts that what he is doing exceeds the accomplishments of any predecessor and that the results are historic.  He feeds on the praise of others and lavishes it on himself.  He shows no embarrassment when other national leaders and his own agents shower him with compliments.

The result is the most personal presidency in American history.  His desire to add Greenland and Canada and maybe even Panama and Gaza to the U.S. seems to be more about his desire to find a place in history for himself than the demands of political or military reality.

Many of Trump’s personal and political characteristics differ from any previous president. He seems ready to inspire fear as an instrument of his style of government. Thus far, he is unchecked by other branches of government, and he intimidates his critics.

His lack of respect for history, cooperation and compromise, and the concerns of others represents change, which voters said they wanted. But change under Trump may come at a high price for the country and its standing in the world.

Experts may opine about the reasons why Donald Trump is the man and president he is.  His business background, his family, and his lack of relationships with average people have undoubtedly shaped him.

I leave psychological or medical judgments to others.  Donald Trump most reminds me of a kid in fifth grade who is not yet mature enough to understand history or how to relate effectively with others, but is strong enough to bully his classmates. 

Republican lawmakers challenge government chief

 

Gordon L. Weil

Only two elements of the federal government seem capable of halting President Trump’s overreach in using his powers – the courts and at least some Republican members of the House and Senate who could join the Democrats in reclaiming congressional powers.  So far, it’s not the GOP, with one Republican senator admitting she’s afraid of Trump.

But there’s at least one clear case of GOP legislators pushing back against an executive effort not only to fire experienced personnel but to slash or abolish a government agency.  It happened in Oklahoma this month.

Governor Kevin Stitt is a Republican.  At the start of the current session, the House was composed of 80 Republicans and 20 Democrats.  The Senate was composed of 39 Republicans and 8 Democrats.  Stitt should be able to get backing for almost any action.

In mid-March, Oklahoma experienced major wildfires, which state and local firefighters struggled to extinguish.  The Oklahoma Forestry Service, the key state agency, had undergone staff cuts under Stitt and was limited in how far it could extend its resources. But the governor claimed that it had deployed only about half of its personnel on the peak day of the fires.

He promptly fired the head of the OFS, a highly respected person who had worked at the agency for 40 years.  The governor also cut other top managers.  He went even further, questioning the need for the agency and proposing almost fatal cuts to its budget.

In Trump’s Washington, the president could have gotten away with such moves.  But not in Oklahoma City.

The House Speaker and the Senate president pro tem both spoke against Stitt’s actions. They pledged to ensure that OFS funding would be locked in.  Their stance mattered because, even after Stitt implicitly admitted that the entire state force had been deployed, he did not back off. Only after public opinion swung to back the legislative leaders, he said OFS would survive.

Why could Oklahoma Republicans oppose their own governor, while the GOP in Congress acquiesces in Trump’s moves, even at the expense of their own constitutional powers?

With political support that cannot be attributed to Stitt’s endorsement, the Oklahoma members may feel more loyal to their constituencies than to their governor.  Local opinions mattered more than the demands of a governor placing his views ahead of the public interest. In relatively small districts, voters could get to know members, rather acceding to Stitt’s influence.

The split between the two branches of government went a step further.  The governor complained that the legislature had passed some bills sponsored by Democrats.  One-party rule, obviously possible, suited him.  So much for meeting public sentiments in favor of government cooperation.

House Speaker Kyle Hilbert responded to Stitt.  He noted that 20 percent of the House was Democratic, but only six percent of the bills passed had been sponsored by Democrats. 

Apart from the specific issues, the Oklahoma case reveals the survival of institutional checks and balances can take place even when one party completely dominates and that bipartisanship can happen even in a setting far more partisan than Washington.

 

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Supreme Court threatens independent agencies

Gordon L. Weil

America grew up and, just like a child growing up, it found that life becomes more complicated.

After the Civil War, Congress devised ways for the government to manage increasingly complex issues.  The Supreme Court is now deciding if this long-standing solution – the creation of independent agencies – is acceptable.

The Constitution gives Congress the power to pass laws on any matter under federal jurisdiction and to test the limits of that jurisdiction, both subject to judicial review.  Presidents can propose laws and approve what Congress did, but their powers do not extend to make them legislators.

The three branches of government lack the time and expertise to regulate a wide range of issues.  While Congress could in theory legislate on individual cases, in practice that’s impossible.  Legislators cannot deal with matters extending from the safety of medications to the control of airplane flights to consumer protection.

The solution has been to delegate legislative and even some judicial powers to independent agencies. In theory, they act on behalf of Congress, not the president. The president appoints members of independent agencies, subject to Senate confirmation.

Because there are only three branches of government, the independent agencies came to be considered as part of the executive branch, even though they exercise few executive functions.  They may make rules for their own operations, but, even then, Congress may choose to disapprove them.

Independent agencies are usually composed of boards whose members are experts in the subject matter under their legislative mandates.  They make informed judgments about the application of the law to specific activities over a wide range of issues.  Where the law is unclear, they may interpret its meaning.

This system has come under political attack.  For those who argue that presidents have all executive authority (the unitary presidency), the independent agencies must be under his control, because they are assigned to the executive branch.  Without presidential authority over them, the agencies may constitute the “deep state,” a part of the government escaping normal control.

If this view is correct, then the agencies are not truly independent.  Their expertise can be overruled by the political agenda of the president.  They become functionally a part of the president’s administration.  The courts retain authority to determine if an agency acted outside of its authorized powers or unconstitutionally.

The Supreme Court has begun to deal with the issues raised by this demand for a new look at independent agencies. Its focus has been on (1) the president’s ability to replace members, even with fixed terms, to suit his policies, and (2) the agency’s ability to interpret the laws applying to its jurisdiction. 

The Court has already ruled that the president can remove the head of an agency if there is only a single person in that position. 

It is now asked to reverse a position it adopted in 1935 and allow the president to remove members of boards of agencies exercising legislative functions .  President Trump has recently removed two Democratic members of independent agencies, who are challenging his action. Could presidents remove members only for allowed reasons or can they do so at will?

The Supreme Court has already overturned an earlier decision and ruled that the courts and not the agencies will determine questions about the meaning of the laws they apply.  That decision could narrow the scope of agency decisions.

If the president can remove the heads of independent agencies and the courts can determine agency jurisdiction, the delegated legislative authority would be fatally weakened.  The only power left to Congress would be to establish agencies for specific purposes, much as it now does for executive departments and their subordinate offices.

In short, the Supreme Court could effectively end the role of independent agencies.  Presidents would be able to substitute their political will for the judgments of experts, eliminating the “deep state.”  Public health and safety could be endangered.  There is a real possibility that this could happen.

The only answer might be for Congress to reassert its legislative authority.  Agencies that now exercise independent powers delegated to them by Congress could be transformed.  Congress could convert them into legislative advisory bodies, carrying out the same expert activities as at present.   Congress would appoint the members.

The conclusions of independent agencies would not be decisions but rather recommendations to Congress.  Congress could establish balanced, bi-partisan committees, like today’s joint committee on taxation, to receive the expert bodies’ recommendations.  Congress could then vote on expert recommendations approved by the joint committee.

While this process would not eliminate partisanship, it would allow for expert opinion free from presidential politics and discharge the courts from determining what Congress meant in the original legislation.

In short, Congress would recover its right to legislate and resume its place alongside the other two branches.

  

Trump wants absolute power

An immigration case involving a single man reveals the heart of the issues raised by the Trump presidency.

Trump and his core team believe that he has virtually absolute and unchecked power.  His political revival is asserted as evidence that the American people want him to decisively change their government.

The case involves the removal from Maryland of Kilmar Armando Abrego Garcia, who claims refugee status and who remained in the U.S. as the result of a court order.  The Department of Justice says he was expelled because of an “administrative error.”

The government refuses to attempt to return him to the U.S., despite a unanimous Supreme Court order, backing a decision of a federal district court. The “administrative error” overlooked his right to due process, including a formal hearing.

DOJ officials argue that the courts cannot order the executive branch to “facilitate” his return.  They maintain that the Constitution gives the president complete and exclusive authority over foreign relations, making it impossible for the court to require him to take an action relating to the man, who is now in prison in El Salvador (the Savior).  

No basis exists for asserting that presidential authority over foreign affairs is complete and exclusive.  For example, the Constitution gives Congress authority in approving treaties, sanctioning enemies, declaring war and controlling immigration.  It may delegate functions to the president, but it retains ultimate control.

Most importantly, it has the power of the purse.  It may pass laws affecting the exercise of presidential powers by denying the use of federal funds for a specific purpose. 

The courts, too, have powers relating to the exercise of foreign relations. They are responsible for ensuring that all branches of government act within the requirements of the Constitution and laws, including due process. 

Despite DOJ claims, the Supreme Court has issued decisions, respected by the executive branch, related to government actions taken outside of American territory.  In the case of a person illegally sent by the executive branch to El Salvador, courts can issue orders to the president who sits in Washington.

The courts try to carefully consider their decisions and may issue temporary orders to halt executive branch action while they deliberate.  The executive may disagree, but it must comply, at least temporarily.

Judges disapprove of government action being taken despite such a restraining order, as the Trump administration has done in the case involving the hasty transfer of hundreds of Venezuelans to El Salvador without due process. 

In that case, the judge has found that the administration may be in contempt of court.  If he issues such a ruling, the DOJ would have to prosecute violators.  The judge warns that he could appoint outside lawyers, if the DOJ refuses to act.

When swift presidential action forces the court into making rapid rulings without full review, a district court judge, sitting alone, may be made to appear as a partisan adversary.  The president may claim to be tussling with an “unelected” opponent rather than disobeying a court.

The assertion of broad presidential foreign relations power is part of an attempt to exercise nearly total government power, pushing aside Congress and the courts.  The Republican Congress has voluntarily acquiesced, but the federal courts continue trying to ensure executive branch actions are legal.

Many federal court cases across the country involve complaints that many of Trump’s executive orders and DOGE agency-slashing moves violate the law.  By acting rapidly, the president has forced courts to act quickly either to suspend his actions or consider them after the fact.

In the federal government, each of the three branches can control, limit or delay action by each of the others.  Constitutional checks and balances are meant to ensure that nobody can exercise unilateral power, akin to authoritarian rule. 

No election, no matter how strong its political message, allows the winner to annul the constitutional system.  Elections and policies come and go, but the system must prevail.  If not, we can reach a point, as we have, when the president threatens to expel citizens he considers serious criminals.

That’s wrong for a citizen and is also wrong for a non-citizen, like Abrego Garcia.  Due process  does not apply only to a citizen; it applies to a “person” in the U.S., however they got here.

In an obviously staged event, the president of El Salvador met with President Trump at the White House.  He refused to return the man, saying he would not send a terrorist to the U.S.  There is no evidence that the man is a terrorist. 

But Trump did not correct him or say the U.S. would accept him in line with the Supreme Court order.  Instead, he smirked in approval.  Later, Trump’s press secretary defiantly asserted Abrego Garcia would never return to the U.S.

Is this where the Constitution stops?

 

The Trump Referendum

Gordon L. Weil

Voters unhappy with the performance of President Trump are looking for opportunities to express their discontent at the ballot box.  House elections to fill vacancies offer them little comfort thus far, because the seats have been solidly Republican.  The only cheer for them may be that the new members of Congress did not do as well as Trump did in last year’s election.

But major vote looms, and it is really all about Trump.  It’s when Canadians elect a new parliament. The vote takes place on April 28. That’s somewhat earlier than required by law, but political circumstances dictated the earlier date.

Prime Minister Justin Trudeau, the Liberal Party leader, had grown unpopular. Many Canadians believed that he had not produced an economy they could live with.  Facing the inevitability of a loss, he tried to sweeten the pot by ill-advised breaks for average people. But that would disrupt his budget commitments, and his finance minister, who would have kept them, quit.

His voting deal with other parties then collapsed, making early elections inevitable.  Trudeau resigned as head of his party, which would then select a new leader, who would become prime minister until the elections. It looked like the Conservatives, under Paul Poilievre, would sweep into power.

Poilievre, from the province of Alberta which is the rough equivalent of Texas, is a professional politician who had cast himself in the model of Trump.  Just as several European countries had voted themselves to the right, he hoped to do the same in Canada.  As in the U.S., many people seemed to want a change from Liberal policies that had not produced promised results.

Into this mix of events came Donald Trump.  He moved to raise tariffs in violation of the USMCA trade agreement that he had pushed in his first term.  The relief for tariffs that he clearly believed would cripple Canada was his plan to force the northern neighbor to give up its nationhood and become the 51^st American state.

His push for Canadian statehood had the same kind of effect there as Pearl Harbor had brought about in the U.S.  If there wasn’t instant unity, it came reasonably close.   Ideological sympathies and the export of its oil to the U.S. showed Alberta to be somewhat less enthusiastic about the response to the U.S. than the other nine provinces.

Poilievre was caught flat-footed.  His natural ally had become the great nemesis.  He saw his 25 percent lead melt to the point that he trailed the new Liberal prime minister.

The new Liberal leader was quite different from his predecessor, who had tried to placate Trump despite being called “Governor” Trudeau by his fellow government chief. The Liberals overwhelmingly selected Mark Carney, formerly governor of the Bank of Canada and the Bank of England plus having served as chair of the international Financial Stability Board.

In short, he knows his stuff and won’t agree with Trump’s version of the role of tariffs. He also comes to the job with excellent credentials and standing and, as a former hockey player, has made it clear he won’t deal with Trump unless he and Canada are treated with respect. 

Many Canadians seem inclined to support him, because he will defend the country against any Trump moves.  He recognizes the need for a long-term relationship with the U.S., but he says the old days are “over.”

There is a third party in Canadian politics, the New Democrats. They are similar to the Bernie Sanders wing of the Democratic Party.  It appears that they will lose strength, as Canadian voters want to make a clear choice between Carney and Poilievre.  The Quebec Party wins seats but cannot produce a government. That contest makes the election a clear referendum on Trump.

While Poilievre has been forced to open some distance from Trump, he remains the representative of a party that would move Canada in the same direction as the GOP.  Will voters conclude that he will be better able to work with his political soulmate than the technically competent Liberal leader?

Feeling runs high in Canada against the wild idea, presented as if it could happen, of their country as an American state.  Obviously, Carney is in a better position than the Conservative and looks stronger and more experienced that Trudeau (or, for that matter, Trump). 

If Carney wins at all and especially if he wins big, it will serve as a rebuke to Trump and his a la carte foreign and economic policy.  Not only will it say that Canada will not succumb to Trump, but that the Great White North will stand on its own as never before.  That could send the puck back to the Americans.

 

 

 

Don't count on the Supreme Court

 

Gordon L. Weil

President Trump seems to be amassing constitutional and legal violations. We await the inevitable action by the Supreme Court to exercise its checks-and-balances power to reverse his excesses.

His actions are likely to be found extra-legal even by a court stacked with conservative justices.  It’s possible that, while Thomas and Alito may not shed their partisan loyalty, the other more responsible justices will give the law dominance over power politics.

Don’t count on it.

Five members of the Court made up the majority in favor of the broadest legal statement of presidential power ever in U.S. history.  While they were joined by Justice Barrett last July, she went along with all their assertions.

That decision was penned by Chief Justice John Roberts.  His support for an almost unchecked president suggests that he will not now support a fresh look at limiting Trump’s powers.  He is a true conservative who may well agree with Trump’s policies.

Trump’s questionable moves take two forms.  First, he declines to follow the spending priorities that are the essence of congressional appropriations.  Congress may authorize or reject spending proposed by the president.  The president must spend just what Congress decides and refrain from spending without authorization.

Yet Trump has cut back on approved spending to the point of virtually eliminating government agencies.  He recognizes that Congress alone can formally terminate an agency, but he gets the job done by shutting it down.   In effect, he exercises a line-item veto, despite the Supreme Court having ruled that presidents don’t have that authority.

He also seeks to subvert the plain language of the Constitution, supported by the Court, the legislative record and historical practice.  He wants to deny citizenship to children of illegal immigrants born in the U.S., known as birthright citizenship.  Their citizenship is “black-letter law,” an unambiguous statement in the Constitution.

Trading on popular opposition to easy immigration, Trump appears to believes that the goal justifies a manufactured interpretation of the clear words of the Constitution.

Beyond these two gambits, he also applies existing laws, including one that formed part of President John Adams’ infamous Alien and Sedition Acts, in ways not contemplated by their drafters nor consistent with historical understandings in Congress and among the states.

The principal reason he can take actions straining the essence of the laws is the compliant Republican majority in the House and Senate.  The GOP members allow his moves either because they share his impatience with democratic processes or because they fear that crossing him may cost them their seats.  Their hold on power may be slim, but it works.

That leaves the federal courts and ultimately the Supreme Court.  They become part of the political system, searching for legal coat hooks onto which they can hang their pre-formed opinions. 

If it ventures too far into political questions, the Court runs the risk of one day facing political retaliation, quite possibly by the addition of new justices to counterbalance the conservative majority.  Roberts obviously worries about direct assaults on the federal courts.

So, the Chief Justice tries to keep the Court rulings as narrow and technical as possible. The Court can support the president simply based on the supposed procedural failings of his opponents and not on the merits of the central question itself.  Such decisions are made on the so-called “shadow docket” where they can be made quickly and without reasons.

A good example is the decision that Trump can transport Venezuelans to El Salvador.  By 5-4, the Court allowed his action based on the failure of the Venezuelans, while being in the expulsion process to bring their case to the correct district court.  The Court said they had due process rights, but let the administration get away with violating that requirement.

In avoiding the substance of issues, the Court can let Trump act freely, while insisting it has lost no power.  In Roberts’ view, the Court should not get involved in essentially political disputes, but should leave them to the president and Congress, the political institutions.  If they are aligned, as at they are now, their will must be deemed the will of the people.

That sends the ultimate recourse back to the ultimate sovereign – the people.  That could mean that the 2026 congressional elections are the next time a decision to approve or disapprove Trump’s authoritarian approach.  Trump has shown the broad implications of his approach and a decision on it should be the central point of the campaign.

Easy talk about defending democracy does not convey the necessary message about the potentially wide reach of Trump’s rule.  To paraphrase a famous statement, if people do not oppose the injustice of authoritarian rule when it affects others, nobody will oppose it when it affects them.