Multi-party Congress could save U.S. government

 

Multi-party Congress could save U.S. system

The new American Parliament

 

Gordon L. Weil

American politics are broken.

As recently as the presidency of Ronald Reagan, the two parties found ways to compromise, constructively if not consistently.  Partisanship existed, but without degenerating into personal animosity or challenges to the patriotism of rivals.

Forget about that.  It’s gone.

The prime evidence is the competitive congressional redistricting that looks to take place every other year, despite the Constitution’s requirement that it occur once a decade.  The historical system, allowing voters to easily change their preference between the parties, is being replaced by efforts to assure the long-term political dominance of the Republican Party.

Throughout history, American politics have undergone deep divisions.  Obviously, the secession of the Southern states is the leading example.  But the unique system of government devised by the Constitution and the customs built around it have endured, always bringing the country back to commonly shared commitments.

The system could recognize regional and ideological differences, on the understanding that the nation was evolving and striving to accommodate those differences.  The three branches of the government might develop at different rates, but they remained in the roles assigned to them.

Recently, divisions, as deep as others in the past, seem to have become more permanent.  Recovery from traditional disputes now is less likely to happen.  The reasons are not that American politicians are more hostile than ever, but that the system itself has undergone two major structural changes that resist reversal.

Congress has become a parliament.  The president has unchecked power.

American political parties have not traditionally been monoliths.  Franklin D. Roosevelt led a divided Democratic Party that included southern racists and northern Blacks.  He might also get the support of defecting Republicans.  Part of his success resulted from his ability to produce congressional majorities out of this mix.

Then, the Democrats enjoyed a long-running House majority.  Republican Newt Gingrich concluded that for the GOP to forge its own majority, it should propose its own agenda and require total commitment to it by its House members.  Failure to remain in line could result in party leadership denying them desirable committee assignments.

After the 1994 elections, it worked.  Strict party discipline replaced the independence of Republican representatives.   The party came to resemble British or Canadian parliamentary parties more than the American political individualism.  Not only did GOP party discipline work, but it became ingrained in the party.

When the Republicans were able to work as a unit, the Democrats, a much less disciplined party, were forced to respond by following the path toward the parliamentary system.  Party lines hardened so that defections by even one or two members have become national news.  Passing bills became tougher.

The Supreme Court filled the congressional vacuum.  It endorsed the concept of a unitary presidency in which the chief executive would control all the levers of government.  The president might govern by executive order when Congress failed to legislate.  Almost no agencies would be independent of the president.

In practice, that meant the president could reinterpret or reject the customs and understandings that had grown up around the Constitution.  President Trump has carried that process to extremes, having been left unchecked by a well-disciplined and submissive Republican Congress that he could intimidate.  He has probably set precedents for his successors.

The country remains split by ideology and region.  Democracy in a vast and divided nation seems to come up short.  Vermont and Mississippi share few common concerns, but have deep political differences.  Some Republicans and Democrats question each others’ patriotism.  A presidential election once every four years fails to produce a truly national leader.

Is democracy in peril as Jefferson thought it could be?   Are issues so complex that the U.S. is simply too large for representative democracy?

The U.S. has adopted a quasi-parliamentary system, but has retained an increasingly powerful executive outside of Congress.  If this system persists, it might evolve further as needed to save popular government.  A first step should be the enlargement of the House, bringing representatives close to the people.

Many parliamentary governments rely on legislative coalitions or voting support from other parties.   Legislation then reflects compromises reached to form or maintain the coalition.  The executive faces an active rather than a passive legislature, which can better exercise checks on the executive than can one-party government.

Talk has begun about a multi-party American system based on ideology.  It might restore the art of compromise, now virtually dead in Washington.

A multi-party system will not emerge rapidly.  New parties must be prepared to mature slowly before having much power.  That will require committed leaders across the country and adequate finance.  Still, splitting up politics is better than splitting up the country.

The process depends on voters seeing the potential benefits of having more than a choice between two parties that time has passed.

Trump is a gambler, not a dealmaker

 

Trump is a gambler, not a dealmaker

Goes for ‘winner take all’

 

Gordon L. Weil

“The Art of the Deal,” the Trump bible, supposedly shows that the president is the unsurpassed master of negotiations.

In fact, it reveals that Trump is not a negotiator, but a gambler.  Trying to force Ukraine President Volodimir Zelenskyy to accept Russian territorial demands, he said that Putin “holds all the cards.”  In his war against Iran, he said the U.S. “holds all the cards.”  That’s the talk of the poker table, not dealmaking.

His book’s 11-point principles focus on how to behave more like a high-stakes gambler than a negotiator seeking to arrive at a deal.

Negotiating means working to reach a bargain between parties seeking to make a deal that is at least acceptable to each.   Both parties want to maximize their gains, but understand that cannot mean a “winner-take-all” outcome.

Trump’s priority is to defeat the other side.  His idea of a deal would yield control not compromise.

These days, Trump tries to combine the power of his personality with American military power, making every deal into his “winner-take-all.”  To achieve his goal, he has developed a distinctly personal negotiating style.

In typical negotiations, each side has an opening position, and they see if they can find a workable balance of interests.  Of course, one side may have greater power, but it’s hard to find a situation in which one side had “all the cards.”  If it did, there would be no need for negotiations.  But Trump doesn’t negotiate.  There are few talks; he issues ultimatums.

Without any attempt at negotiations, he raised tariffs on all other countries.  He expected them to ask him to lower increases in return for their reducing any trade deficit with the U.S.  Most did, even when the preexisting trade was fair.  The net result was an increase in prices almost worldwide.  Plus, considerable discomfort or even animosity among other countries.

In its trade war on the world, the U.S. caused nations to retreat, except China and Canada.  It has led other countries to take steps to reduce their trade with the U.S.  Canada’s Carney has pushed the idea of “middle powers” working together to increase their trade and shared development, and it’s working.

Trump applied much the same approach with Iran, though he has depended mainly on the threat of American force.   Having seen Venezuelan resistance fold, he thought the U.S. would have a similar effect on Iran.  He failed to understand the difference between the two countries.  Iran has resisted, exploiting its dominance of the Strait of Hormuz.

In its effort to force Iran to accept Trump’s demands, the U.S. has had to deplete its weaponry.  It has transferred naval vessels to the Middle East, leaving international Asian waterways open to China’s claims of sovereignty.   Despite major increases in military spending, it has accepted defensive help by Ukrainian drones, deployed in Arab countries.

Trump looks for public plaudits for his dealmaking. But his Israel-Gaza deal never got beyond Israel getting its hostages back.  His Board of Peace, designed to rebuild Gaza and replace the U.N., has almost disappeared.  He briefly got the spotlight, but his Gaza plans died, possibly from an overdose of ego.

His charm offensive with Kim Jung-un in North Korea, produced nothing, and the country has sent troops to aid the Russians, who now aid Kim.  Despite his self-promotion, the Nobel Peace Prize remains elusive.

Trump may be learning that winner-take-all only works in world affairs when one side is hugely more powerful than the other.  Recent events have shown there are now no great powers. 

The U.S. had to back down on Greenland and can’t prevail in Iran. 

Russia, supposedly the major threat to Western Europe, can’t take over Ukraine, which it thought would fall in days.   

China seemingly wants superpower benefits, mostly economic, without the responsibilities of leadership.

At home, Trump devotes little attention to much beyond retaliating against his critics. He doesn’t make deals.  He does not devise common plans with the GOP leaders of the House and Senate.  He seldom sits down with his own legislators, but often threatens them.  He never talks with the Democrats.

Conference committees formerly negotiated gaps between the two houses, but they have disappeared.   Trump obviously prefers congressional inaction that gives him the scope to act independently, but his executive orders frequently become tangled in court proceedings.  As grandstanding that may work, but there’s no sign of deals, much less artistry.

The great gambler is proving not to be great at government, a different game.  He has promised that his negotiating skills would bring quick results on Ukraine and inflation.  But the record-setting government shutdown and the prolonged Iran war lead his loyalists and others to understand that he can’t make deals or keep many of his high-priority promises.

Trump’s last chance; redistricting chaos; war powers

 

Trump’s last chance; redistricting chaos; war powers

Gordon L. Weil

Redistricting out of control

In the latest round in the race to redistrict congressional districts, the Virginia Supreme Court undercut Democratic hopes by overruling the results of a statewide referendum on redistricting.  A court has blocked a vote of the people. Unusual, but a sign of the unlimited power of the judiciary.

Another recent development is the prompt action to eliminate Democratic districts, notably those represented by African Americans, in the wake of last week’s U.S. Supreme Court ruling that minorities would have to show clear intent to discriminate to block such moves.  It’s easy to disguise such bias in Republican states that are eliminating Democratic districts.

Chief Justice John Roberts protests that people should not see the Court as political.  Given that swift redistricting took place days after the last time the Court slashed the Voting Rights Act, the Chief asks too much.  Maybe he should worry that people will believe the Court is hopelessly out of touch or, worse, racist.

Some states used to elect members of Congress on a single statewide ballot, but Congress used its constitutional power to require the use of districts.  We are now getting the equivalent of single, statewide party rule when partisan gerrymandering takes place, which the Court approves.

Because Congress can require the use of the districts, it should also require they meet standards that prevent weirdly shaped districts created to serve partisan purposes.  For example, it could require counties to be kept intact as much as possible and that each district must be compact.

Trump’s last chance?

President Trump realizes that there’s a good chance the Republicans will lose control of the House and possibly of the Senate.  The Democrats could block many of his initiatives.  He would have to deal with them, a prospect he probably intensely dislikes.

As a result, he wants to accomplish as much of his agenda as possible this year, before a new Congress takes office.  His wish list could well include these items:

1. End hostilities with Iran, open the Strait of Hormuz and get oil and gas prices down fast. 

2. Get the next One Big Beautiful Budget passed with a huge increase in military spending.

3. Quit NATO in law as well as fact.

4. See Putin end Russia’s war with Ukraine, allowing Trump to claim the Nobel Peace Prize.

5. Force changes in the Cuban and Brazilian governments, thus confirming his Donroe Doctrine.

6. Trash the USMCA trade agreement with Canada and Mexico.

7. See a court convict just one of his political opponents.

Leaders double down

Trump faces falling poll ratings.  Putin worries about being toppled. Netanyahu must make it through upcoming elections.  All run risks caused by their military excesses.  The question is whether they will find ways to manage their problems by admitting their errors of judgment.

So far, they share a common characteristic.  When things start to go bad, you double down.  That does not reverse the earlier mistake; it makes matters worse.

Trump’s obstinacy on Iran has brought economic harm in the U.S. and across the world.  His inconsistent and idiosyncratic policies have cost the U.S. its world leadership.  His theme is America First, but he applies it in ways that don’t serve the long-term national interest.  He may not care for anything more than ego gratification (passport image, Kennedy Center).

Putin’s war has lasted longer than the Soviet Union’s participation in World War II.  Russians have noticed and even some of his loyal supporters have openly questioned his Ukraine invasion. He reportedly works out of a bunker.  But he won’t admit defeat.

Netanyahu may be popular in Israel, but not much elsewhere.  He is losing the backing of many Democrats, an unfortunate development when Israel has long relied on strong bipartisan American support.  When the dust settles, he may have escaped his personal legal trouble, which seems to matter a lot, but not the long-term cost to Israel, which seems not to matter enough.

The War Powers Act

The War Powers Act requires the president to notify congressional leaders within 48 hours of launching military operations.  Congress must authorize the operations within 60 days (30 additional are possible) or they must be halted.

Though he doubted the WPA’s constitutionality, President Trump provided timely notice after the Iran War began.   A tenuous ceasefire stopped most offensive action within 60 days, though large U.S. forces remain ready to act.  He claimed that no congressional action was required, because of the ceasefire.

The WPA says nothing about armed conflict continuing; it does not mention suspension of the 60 days once the period begins. It’s the starting date that matters, making Trump’s interpretation dubious.  But, so far, the WPA has seemed to work.

 

Sen. Collins meets the common man

Sen. Collins meets the common man

Big money, big attacks coming

 

Gordon L. Weil

Gov. Janet Mills left the Maine Democratic Senate primary race, and the pundits flooded the media with their opinions.

Her story fit their story: the Democratic Party is split between traditional moderates and leftwing progressives.   Her withdrawal showed the progressives are gaining.

The pundits may have been partly correct, but that’s not the whole story.  The split was more practical than ideological.  The dominant question was not about the direction of the Democratic Party, but who had the best chance of defeating Sen. Susan Collins.

The almost automatic response was that Mills, a proven statewide winner with high name recognition, was the ideal candidate to end Collins’ hold on the Senate seat.  Undoubtedly, that led Sen. Chuck Schumer, the Senate Democratic leader, to endorse Mills, but it proved to be too simple a theory.

Sen. Susan Collins usually looks vulnerable to a Democratic challenger, but always wins.  This year, for the first time, with Mills out, she will face a candidate who has not previously held public office – an outsider.   Mills gave way to Graham Platner, an oyster farmer who never held a higher office than harbormaster.

Mills got into the race late.  Collins, who too often had supported President Trump, was losing her reputation as a rare GOP moderate.   Mills, as a two-time statewide winner, could have calculated that her right-of-center record and high voter recognition would give her an advantage.  Platner, already running, could be easily defeated.

She might have believed that she could readily assemble a coalition of coastal liberal voters and her more inland moderate constituents.  After all, that has worked in the Legislature while she’s been governor. 

But Mainers, like people elsewhere, are increasingly dissatisfied with the failure of government, federal or state, to improve their lives.  Collins could bring home Capitol largesse, but a new dock or dam doesn’t put food on the table or gas in the tank.

This sentiment suggests voter despair with both parties.  Voters say they want a candidate who expresses independence from the system.   Sen. Angus King may be an independent, but he comes across as a conventional Democrat. 

Platner appears as bold, basic and original.  His personal defects have emerged, notably a tattoo linked to Nazi symbols and his negative posts about women and even lobstermen.  He readily admits his errors, attributing them to a heedless youth.  Though virtually sure to win, he still faces a respectable, but unfunded, primary opponent.

Collins campaign allies are already attacking him for these faults, but the Democrats seem undeterred.  Since candidate Trump survived his Access Hollywood remarks about grabbing women, voters may have come to ignore the past failings of candidates whose politics they prefer.

The pundits focus on Maine as a purple state – one that could swing between the red GOP and the blue Dems.  One of its two congressional districts has voted for Trump each election.  That might raise doubts about Platner, backed by Sen. Bernie Sanders, when facing a statewide electorate.

Trump’s popularity has reflected discontent with government among many Second District rural voters, but he may have lost some appeal.  He backs a candidate in the GOP governor’s primary and has attracted massive financing for him, which pays for a big media buy.  But, at this stage, he is still trailing a more traditional conservative.

Many Democrats saw Mills as too right-of-center.  She opposed the creation of a system of public defenders, though Maine was the last state without one.  She later gave some ground.  Just before her departure, she vetoed a Democratic move to suspend approval of any data centers in the state, which would have set Maine apart.

At 78, Mills’ age counted against her.  She would have been the oldest first-year senator ever.  King, the other Maine senator, is 82.  Maine has the oldest median age, and many seniors are aware of the limits imposed by age when working the long hours required by public life.

Collins, 73, faces age and possibly a health issue, a “benign essential tremor.”  No Mainer has ever served six terms in the U.S. Senate, as she would.  Platner, 41, is slightly younger than the state’s median age of 45.  He will face relentless attacks focusing on his past.  Collins may have some deniability, if her campaign does not directly sponsor the ads.

Her split-the-difference form of moderation will be weakened by her having backed Trump’s cabinet nominations and key policies.  She rarely differs with the president when it counts.

The Maine GOP is divided between moderates and conservatives.   Collins may have miscalculated that she can still hold onto both Rockefeller Republicans and MAGA Trumpers.   She clings to her Senate seat, unlike Olympia Snowe, a GOP moderate who retired gracefully.  Platner may be strong competition in a down year.

Let the campaign cash flow.

 

 

  

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.